PART A: CRIMINAL LAW IN NEW SOUTH WALES

Last Updated 27 June 2017

1/.
From Arrest to Local Court

(a) Arrest and Following

Do I Have to Answer Police Questions?

The general position is that you do not have to answer police
questions. There are some important exceptions which are set out below. As a matter
of common sense, if you are asked questions by police about a simple matter of which
you are obviously innocent, it is probably a good idea to answer their questions.
In other situations, speak to a lawyer first. In particular, if the police want to
record an interview with you on tape or video, always say you want to speak to a
lawyer first.

A police officer can request a person to provide his or her name and address if those
details are unknown to the police officer and if the police officer suspects on reasonable
grounds that the person may be able to assist in the investigation of an alleged
offence because the person was at or near the place where an alleged indictable offence occurred
around the time when the offence occurred: s. 11 Law Enforcement (Powers and Responsibilities) Act (hereafter LE (PAR) Act).
It is an offence to refuse to supply a name and address: s. 12 LE (PAR) Act. The penalty is
2 penalty units, or $220. It has been held that the police are entitled to demand the particulars of a suspect: DPP v Horwood [2009] NSWSC 1447.

Where a police officer reasonably suspects that a motor vehicle was or may have been
used in the commission of an indictable offence, the police officer can ask the owner,
driver or passenger of the vehicle to supply details of the driver and passengers
in the vehicle at the time of the offence: s. 14 LE (PAR) Act It is an offence to refuse to give an answer or to give a false name or address,
carrying a penalty of $5500 or 12 months gaol: ss. 16-18 LE (PAR) Act

The police have no power at common law to search someone prior to arrest: Mammone
v Chaplin (1991) 54 A Crim R 163. However under s. 21 LE (PAR) Act the police may stop and
search anyone whom they reasonably suspect has something stolen anything or otherwise
unlawfully obtained or anything used in an indictable offence.

A 'reasonable suspicion' involves less than a belief but
more than a mere possibility. There must be some factual basis for the suspicion; reasonable
suspicion is not arbitrary. Hearsay material can be used as the basis for a reasonable
suspicion: Rondo (2001) 126 A Crim R 562 .

A police officer has the power to stop and search a motor
vehicle if he/she believes on reasonable grounds that the vehicle is being or may
have been used in the commission of an indictable or firearms offence, or if the police officer believes on reasonable grounds that the vehicle contains drugs or anything used or intended to be used in the commission of such an offence, or if the police
officer believes on reasonable grounds that there is a serious risk to public safety
and the search might lessen that risk: s. 36 LE (PAR) Act.

De Facto Arrest.
A person is arrested when police deprive him of his liberty, regardless of the words
used. A person is arrested when police make it plain to him that he is not free to
leave if he chooses: Lavery (1978) 19 SASR 515, C (1997) 93 A Crim R 81. When a person
is confronted at his home by armed police an arrest may occur unless police indicate
that the person is free to leave: Trotter (1992) 60 A Crim R 1.

Purpose of Arrest.
An arrest for the purpose of investigating whether or not the person has committed
a crime, or obtaining more evidence, is an illegal arrest: Williams v The Queen (1986) 161 CLR 278, 66 ALR 385.
The purpose of the arrest must be to bring the person before a magistrate. This remains
the case after the amendments to the Crimes Act allowing detention after arrest for
the purpose of investigation: Dungay (2001) 126 A Crim R 216. It also means that there is no power to arrest a suspect when the arresting officer has not formed an intention to charge him: Dowse v NSW [2012] NSWCA 337 esp at para [27].

Reasonable Cause.
The arrester must have reasonable grounds to believe that the person has or is in the act of committing an offence: s. 99 LE (PAR) Act. Reasonable cause includes
hearsay: Hussein v Chong Fook Kam [1969] 3 All ER 1282. The principles relating to 'reasonable grounds to arrest have been summarised in Hyder v The Commonwealth [2012] NSWCA 336 esp at para [15].

Notification.
When the police decide to arrest or charge someone they should so inform the person
of that fact and the grounds of the arrest and caution the person that they do not
have to answer any questions: Code of Practice for Crime p. 8, formerly Instruction
37.14. No particular form of words is necessary as long as it is made clear to the
person that he is under arrest: Inwood [1973] 2 All ER 645. The reason for the arrest
should be made clear to the person unless:

The power to arrest should only be exercised as a last resort
where alternatives (such as issuing a summons or a court attendance notice) are impractical.
If the power of arrest is used inappropriately for a minor offence, and the offender
reacts by committing an offence such as resist arrest /assault police, evidence of
these latter offences may be excluded in the exercise of the court's discretion: DPP v Carr (2002) 127 A Crim R 151.
See also DPP v CAD [2003] NSWSC 196.

Carry Cutting.
It is an offence to have a cutting weapon when arrested: s. 547D Crimes Act. This only applies when
police locate the weapon after the defendant has been arrested: Pittman v Di Francesco
(1985) 4 NSWLR 133.

Prints and Photos.
A police officer can take particulars necessary to identify a person in custody including fingerprints, palm prints and photographs for the purpose of identification
of persons over 14: s. 133 LE (PAR) Act. Children under 14 can only be photographed or fingerprinted with a court order: s. 136 LE (PAR) Act. The purpose
is ID for the court, not the police: Carr [1972] 1 NSWLR 609. However the decision
to take fingerprints or photographs will only be impugned if not made bona fide:
McPhail and Tivey (1988) 36 A Crim R 390. In practice, anyone arrested and charged
is fingerprinted.

Medical Examination.
Where an officer of or above the rank of sergeant has reasonable grounds for believing
a medical examination will provide evidence, can request a doctor to examine a person
in custody: s. 138 LE (PAR) Act. This provision does not permit includes specimens
of blood and semen: Fernando
(1995) 78 A Crim R 64. However, authority to take such samples can be obtained under the Crimes (Forensic Procedures) Act (2000), discussed below.

Any forensic procedure can be carried out with the informed
consent of the suspect (s. 7) Children and mentally incapable
people cannot give their consent (s. 8). 'Informed consent' carries
with a requirement that police inform the suspect of his rights and in particular
the fact that the forensic procedure may produce evidence against the suspect which
could be used in court (s. 13). The giving of information
to the suspect and the suspect's responses 'must if practicable' be recorded electronically
(s. 15).

If the suspect is an Aboriginal
or Torres Strait Islander, the police must notify an Aboriginal legal aid organisation,
and must not ask the suspect to consent without an interview friend being present,
unless the suspect expressly waives the right to have an interview friend (s. 10).

Forensic procedures can be carried out on 'volunteers' who
are not suspects, with their informed consent, unless they are children or mentally
incapable: s. 76.

Intimate forensic procedures can only be carried by order
of a magistrate or other authorised justice, after a hearing at which the suspect
must normally be present: s. 22. Before making such an order, the magistrate must be satisfied of the following:

(1) that the person is a suspect (defined as s. 3 as meaning someone who has been arrested or charged with the offence, or whom the police officer reasonably suspects of having committed the offence);

(2) that there were reasonable grounds to believe that the suspect had committed a prescribed (i.e. indictable) offence or a related offence;

(3) that there were reasonable grounds to believe that the particular forensic procedure might produce evidence tending to confirm or disprove that the suspect had committed the offence of which he was suspected; AND

(4) that the carrying out of the forensic procedure was justified in all the circumstances (having regard to the gravity of the offence, the seriousness of the circumstances of the offence (?), the degree to which the suspect is said to have been involved in the offence, the age, cultural background and physical/mental health of the suspect, whether there are other practical ways of obtaining the evidence, the reasons the suspect has given for refusing, the time the suspect has been in custody, and such other matters as the magistrate considers relevant

The magistrate must make a finding that each of these matters have been established before an order can be made: Orban v Bayliss [2004] NSWSC 428 at para [48]. In particular, the magistrate must make a specific finding that there are reasonable grounds for believing that the suspect has committed the offence: Fawcett v Nimmo (2005) 156 A Crim R 431. It has been held that the magistrate can take into account hearsay material in making the determination: L v Lyons (2002) 56 NSWLR 600, 137 A Crim R 93. Before the magistrate makes an order requiring a suspect to give a sample of DNA, there must at least be a sample of DNA at the crime scene to match it with: Walker v Bugden (2005) 155 A Crim R 416 .

Forensic Procedures and Prisoners

These provisions apply to 'serious indictable offenders',
that is prisoners serving sentences for offences which carry a maximum penalty of
5 years or more: s. 3 Crimes (Forensic Procedures) Act. Police officers are given the power to make an order that
a sample of hair (other than pubic hair) or a hand print, fingerprint, foot print
or toe print be taken from a serious indictable offender in prison: s. 70 Crimes (Forensic Procedures) Act . A magistrate's order is required for the taking of a sample
of blood or a buccal swab: s. 74.

Period of Detention

A person who is under arrest can be detained by police for
the 'investigation period' (s. 114 LE (PAR) Act). This period
is a 'reasonable time', but no more than 4 hours or such longer period as extended
by an investigation warrant: s. 115 LE (PAR) Act.

In determining what is a 'reasonable time', certain periods can be disregarded as
'dead time.' Periods which can be treated as 'dead time' are the following (in summary):

(a) time taken to convey the person to the nearest location
with facilities for conducting forensic procedures;

(b) a reasonable time waiting for the arrival of police
officers or people whose special skills are necessary for the investigation;

(c) time waiting for a tape recorder or video tape to become
available to record a record of interview;

(d) time to allow the accused to communicate with (presumably
by phone) a friend, relative, guardian, independent person, lawyer or consular official;

(e) time taken in waiting for one of the people referred
to in (d) to arrive;

(f) time taken to allow the accused to consult at the place
where he is detained with one of the people referred to in (d)

(g) time taken in arranging for and allowing the accused
to have medical treatment;

(h) time waiting for an interpreter to arrive or become
available;

(i) time reasonably required to arrange and conduct an identification
parade;

(j) time for the accused to rest, receive refreshments,
or go to the toilet;

(k) time for the accused to recover from intoxication from
alcohol an/or drugs;

(l) time for the police to prepare, make and dispose of
an application for a detention warrant or search warrant;

(m) time reasonably required to charge the accused.

(see s. 117 LE (PAR) Act). The person must be released during the investigation period
or brought before a justice, magistrate or court within the investigation period
or 'as soon as practicable' after the end of that period: s. 114 LE (PAR) Act.

Extensions to the Investigation Period

A magistrate or clerk of the Local Court can authorise an
extension to the investigation period for a further period, up to 8 hours (s. 118 LE (PAR) Act). The application can be
made orally or in writing.

The Rights of the Suspect

The custody manager at the police station is required to
caution the suspect and summarise the provisions about detention: s. 122 LE (PAR) Act. The custody manager is
required to inform the suspect before any investigative procedure starts that the
suspect can contact a friend, relative or lawyer to inform them of his whereabouts,
consult them, or in the case of a lawyer to be present during the investigative procedures.
The custody manager is required to provide facilities for the suspect to communicate
with the friend, relative or lawyer (s. 123 LE (PAR) Act).

Similarly the custody
manager is obliged to inform foreign nationals of their right to communicate with
a consular official of the country of which the suspect is a citizen (s. 124 LE (PAR) Act).The custody manager must arrange for an interpreter to be
present during any investigative procedure if it appears that because of inadequate
knowledge of English the person cannot communicate with reasonable fluency in English
(s. 128 LE (PAR) Act).

'Vulnerable Persons': Children, Aboriginals, people with an intellectual disability, etc

'Vulnerable persons' are entitled to have a support person present during any investigative
procedure: Regulation 27 LE (PAR) Regulations. Before any investigative procedure starts, the custody manager at
the police station must inform the 'vulnerable person' that he/she is entitled to
have a support person present during any investigative procedure (reg 27).

Support Persons

If the 'vulnerable person' wishes to have a support person
present, the custody manager must provide 'reasonable facilities' to enable a support
person to be present (presumably access to a telephone) and allow the 'vulnerable
person' to communicate privately with the support person: reg 27 LE (PAR) Regulations. This includes the right to make a phone call to a legal practitioner (reg 25 LE (PAR) Regulations).

The custody manager is to inform the support person that he/she
is not restricted to acting merely as an observer in the interview, but may assist
and support the person being interviewed, observe whether or not the interview is
being conducted fairly, and identify communication problems with the person being
interviewed: reg 30 LE (PAR) Regulations.

The caution should be repeated in front of the support person: reg 34 LE (PAR) Regulations. A copy of a summary of the suspect's rights while in custody (formerly called the part 10A document) should be given to the support person
and any interpreter for the vulnerable person: reg 30 LE (PAR) Regulations.

Breaches of these regulations may be very significant in relation to the question
of whether an alleged confession of the 'vulnerable person' is admissible.

Aborigines

In addition to the rights referred to in the preceding paragraph,
the custody manager of a police station must inform an Aboriginal or Torres Strait
Islander in custody that he will inform an Aboriginal legal aid organisation that
he is the suspect is in custody for an offence, and notify the Aboriginal legal aid
organisation accordingly: reg 33 LE (PAR) Regulations This requirement does not depend on the accused making a request
for an Aboriginal legal aid organisation to be contacted. As to the effect on the
admissibility of a confession made when this regulation was not complied with, see Helmhout (2001) 125 A Crim R 257.

(b) Search and Other Warrants

Surveillance Device Material

Generally speaking recording a private conversation of parties
without their consent is unlawful: s. 7 Surveillance Devices Act. One exception is where the the person recording the conversation is a party to the conversation and records the conversation in order to protect that person's lawful interests: s. 7 (3) Surveillance Devices Act. This may permit a child complainant in a sexual assault case to record a conversation with an adult accused: DW v Regina [2014] NSWCCA 28.

the application for the listening device warrant referred to above have been complied with;

in the case of a telephone application, because of the urgent circumstances, it was necessary to make an application by telephone;

there are reasonable grounds for suspecting that a particular person is using or will is likely to use the service;

information that would be likely to be obtained from the proposed telephone intercept would be likely to assist in the investigation of a class 1 offence in which the person is involved;

having regard to the extent to which other methods of investigation of the offence are available, how much information would be likely to be obtained by such methods, and how much the use of such methods would prejudice the investigation, some or all of that information cannot be obtained by such methods.

Matters of which a judge must be satisfied for a warrant for a class 2 offence

the application for the listening device warrant referred to above have been complied with;

in the case of a telephone application, because of the urgent circumstances, it was necessary to make an application by telephone;

there are reasonable grounds for suspecting that a particular person is using or is likely to use the service;

information that would be likely to be obtained from the proposed telephone intercept would be likely to assist in the investigation of a serious offence in which the person is involved or another person who is involved who the person is likely to communicate with;

having regard to the balance between the need for privacy and the public interest (in summary) the warrant should be issued

indicate conditions or restrictions, if any, and excluded services, if any

be signed by the judge /AAT member

Telephone Intercepts not authorised by warrant

If a telephone intercept has not been authorised by warrant, and is not authorised by one of the exceptions referred to above, it is inadmissible in evidence: s. 77 Telecommunications (Interception and Access) Act. It is important to note that this is not subject to any discretion.

Applications for Search Warrants.
A police officer can apply (normally in writing ) for a search warrant setting out
the grounds for believing that on premises there is something that is connected with
an indictable, firearms, or drug, or child pornography offence or something stolen: s. 47 LE (PAR) Act.

An occupier's notice must be handed to an occupier over 18: s. 67 LE (PAR) Act. Anything mentioned in the
warrant and anything reasonably thought to be connected with any offence may be seized: s. 49 LE (PAR) Act. Any person in the premises
reasonably believed to have a thing mentioned in the warrant may be searched: s. 50 LE (PAR) Act.

Search Warrants on Drug Premises

There are specific police powers relating to 'drug premises'.
Any officer of or above the rank of sergeant can apply for a search warrant for
premises which he/she believes on reasonable grounds is being used for the manufacture
or supply of a prohibited drug: s. 140 LE (PAR) Act.
If the warrant is granted the police have the power to search the premises and any
person found on the premises: s. 142 LE (PAR) Act. Generally
the provisions for the execution of ordinary search warrants described above apply: s. 59 LE (PAR) Act.

A law enforcement officer can make an application in writing (or, in urgent cases,
orally) to the chief executive officer of a law enforcement agency (usually the Commissioner
of Police) for an authority to conduct a controlled operation. The application must
include the plan of the proposed operation, the alleged nature of the criminal activity
or corrupt conduct being investigated, the nature of the 'controlled activity' to
be used, and a statement about whether there has been any earlier application (s. 5).

The chief executive officer may authorise the controlled operation if satisfied that

there are reasonable grounds for believing that criminal
activity or corrupt conduct is being conducted

the nature and extent of the criminal activity and corrupt
conduct is such as to justify the conduct of a controlled operation

the nature and extent of the proposed 'controlled activities'
are appropriate to the suspected criminal activities or corrupt conduct

the controlled activities are capable of being sufficiently
accounted for

The power to issue an authority can be delegated but only
to an officer of or above the rank of superintendent (s. 29). A written statement of reasons
should be kept by the Chief Executive Officer (s. 6).

Importantly the legislation prohibits inducing or encouraging a person to commit
criminal activity or corrupt conduct that the person could not reasonably be expected
to engage in unless so induced or encouraged. It also prohibits conduct likely to
seriously endanger the health and safety of any person, or cause serious damage to
property (s. 7). In Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43 it was held that this provision was breached when the Crime Commission authorised the sale of 6 kilos of cocaine knowing it was unlikely to be recovered.

The authority must be in writing and must indicate:

the operation by reference to the plan

the law enforcement officer who is conducting the operation

must identify the names of each person who may engage in
'controlled activities'

must indicate whether such persons may operate under an
assumed name

must indicate the 'controlled activities' each law enforcement
officer and civilian participant may engage in

must specify the duration (not to exceed 6 months) of the
authority (s.8)

A law enforcement official and a civilian authorised to
engage in a 'controlled activity' does not constitute an offence (s. 16). A certificate issued by a chief executive officer of a law
enforcement agency to the effect that he/she was satisfied of matters referred to
in the certificate is conclusive evidence that he/she was so satisfied (s. 27).

Entrapment in Commonwealth Proceedings
There are similar provisions in ss. 15G to 15J of the Commonwealth Crimes Act.
Once again, the Act does not apply of a person is intentionally induced to commit
a crime, and the person would not otherwise have committed that offence or an offence
of that kind (s. 15I)

(c) Interrogation

Children.
Police should not question a child suspected of committing an offence unless there
is a 'support person' present (not a police officer): Code of Practice for CRIME,
p. 33, replacing Instruction 37.17.

Aboriginals.
In the Northern Territory special rules have been formulated for interrogation of
Aboriginals. For example there should be a 'prisoners friend' present, the caution
should be read back by the accused, the questions should not be leading, etc. These
rules are called the Anunga Rules: Anunga (1976) 11 ALR 412. Under the Code of Practice
for Crime, the custody manager is required to ensure that Aboriginal legal aid has
been contacted: Code of Practice for CRIME, p. 12.

Police Questioning: suspects with an intellectual disability
Where a person is suspected of being developmentally delayed the interview should
take place in the presence of a guardian, relative, friend or non-police professional:
Police Instruction 37.14.

Records of Interview.
The defendant should be asked to read the interview aloud. The senior officer available
not connected with the investigation should ask the defendant if it was a voluntary
statement etc. The defendant should be supplied with a copy: Instruction 37.16.

'Preliminary Questioning' in Notebooks.
When a suspect makes a 'confession, admission or statement' in preliminary questioning,
the police officer should 'record it in full in your notebook' (Code of Practice
for CRIME pp. 25-6). 'Do not make notes elsewhere' (Police Service Handbook p. N-2).
The suspect should be asked to sign the notebook. In any subsequent ERISP, the notebook
entries should be read to the suspect who should be asked to comment on them (Code
of Practice for CRIME p. 26).

After Charge.
Once a person has been charged they should only be interviewed when necessary to
minimize loss or harm to some person, or about new matters, or to recover property:
Instruction 37.14. According to the Code of Practice for CRIME, a person in custody
has a 'right' to communicate with a friend, relative or legal guardian: CRIME at
p. 15, replacing Instruction 155.

(d) Bail

The Bail Act (2013)

The Bail Act (2013) commenced on 20 May 2014. I recommend a very good paper written by Lucinda Opper on the new act which can be found here. Subsequent to Lucinda's paper there have been some significant amendments to the Bail Act.

(c) a variation application (which can be made by any 'interested person')

An 'interested person' who can make a variation application is an accused, a prosecutor, a complainant in a domestic violence offence, a person for whose benefit an apprehended violence order was made, or the Attorney-General (s. 51 Bail Act).

Offences where there is a right to release

There is a right to release on bail for offences for which the maximum penalty is a fine only, and offences under the Summary Offences Act (apart from certain specified offences): s. 21 Bail Act.

Appeals bail

Where there is an appeal from the District Court or Supreme Court to the Court of Criminal Appeal, or to the High Court, bail can only be granted if there are 'special' or 'exceptional' circumstances: s. 22 Bail Act. Under the previous Bail Act, it was held that in practice this
means it is necessary to show that the appeal is most likely to succeed: Regina v Wilson (1994) 34 NSWLR 1. Where the appeal is against a sentence imposed in the District Court,
it needs to be shown at least that if bail is not granted the whole sentence will
be served before the matter is heard in the CCA, or that there is an overwhelming
likelihood that the appeal will succeed in the CCA : Tyler (1995) 80 A Crim R 371. It is overstating the case to say that a succesful appeal must be virtually inevitable to obtain appeals bail: El-Hili and Melville v Regina [2015] NSWCCA 146 esp at para [24]. The CCA has the power to grant bail: Milsom v Regina [2014] NSWCCA 118.

'Show Cause' Offences

Where a bail authority is considering a case of an accused who is over 18, charged with a 'show cause' offence, the bail authority must refuse bail unless the accused shows cause why his or her detention is not justified: s. 16A (1) Bail Act. Once the accused has 'shown cause', the bail authority must then make a bail decision in accordance with the 'unacceptable risk' test: s. 16A (2) Bail Act. As to the 'unacceptable risk' test see below.

'Show cause' offences are set out in s. 16B Bail Act. In summary, they include:

offences punishable by life imprisonment;

serious indictable offences involving an adult having sexual intercourse (or inflicting actual bodily harm with intent to have sexual intercourse) with a child under 16;

an offence of violence involving wounding or infliction of grievous bodily harm or more where the accused has a record of committing a' serious violence offence' (in summary an offence of violence with a maximum penalty of 14 years or more)

an offence involving the possession of a firearm in a public place or use of a firearm in the commission of a serious indictable offence;

an offence which involves possession, supply or use of a military-style firearm;

a drug offence under either state or Commonwealth legislation involving at least a commercial quantity of the drug;

a serious indictable offence committed while the accused is on bail or parole;

an indictable offence committed while the accused is on a supervision order;

offences of attempting or aiding and abetting the offences referred to

In determining assessing any 'bail concerns', the court is to consider the following matters, and only the following matters (s. 18 Bail Act):

(3) A bail authority is to consider the following matters, and only the following matters, in deciding whether there is an unacceptable risk:

(a) the accused person’s background, including criminal history, circumstances and community ties,
(b) the nature and seriousness of the offence,
(c) the strength of the prosecution case,
(d) whether the accused person has a history of violence,
(e) whether the accused person has previously committed a serious offence while on bail,
(f) whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
(g) whether the accused person has any criminal associations,
(h) the length of time the accused person is likely to spend in custody if bail is refused,
(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,
(m) the need for the accused person to be free for any other lawful reason,
(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,
(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,
(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.

(q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code),

(r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,

(s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

In determining whether or not the offence is to be regarded as a serious offence, the following matters are to be considered (s. 17(4)):

(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900,
(b) the likely effect of the offence on any victim and on the community generally,
(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.

Some very recent cases have said that the onus is on the prosecution to establish that there is an unacceptable risk if the accused is granted bail: Regina v Alexandris [2014] NSWSC 662 esp at para [10]). Cases in other jurisdictions with a similar test to the 'unacceptable risk' test have stated that although the risk must be more than a tenuous one or the worst fear, it is not necessary for the prosecution to establish that the risk is more probable than not: see for example Haidy v DPP [2004] VSC 247 esp at paras [15] to [16]. Some cases have emphasised that assessing 'unacceptable risk' involves not simply determining whether or not there is a risk that (for example) the offender will re-offend, but balancing that risk against the consequences for the accused (including the accused's right to be at liberty) if bail is refused': see for example Woods v DPP [2014] VSC 1 esp at para [47].

Where there is no unacceptable risk, the bail authority must either release the defendant without bail, dispense with bail, or grant unconditional bail (s. 18 Bail Act).

Second Issue: Where there is are 'unacceptable risk', can it be sufficiently mitigated by bail conditions?

Where the bail authority has determined that there is an 'unacceptable risk', the bail authority must then determine whether or not the unacceptable risk can be sufficiently mitigated by bail conditions. Again, it has been held that the onus is on the prosecution, on the balance of probabilities, to establish that the 'unacceptable risk' cannot be mitigated: Regina v Lago [2014] NSWSC 662 esp at para [10].

If the 'unacceptable risk' cannot be mitigated by bail conditions, bail can be refused: s. 19 Bail Act.

Third Issue: What should the bail conditions be?

Bail conditions can only be imposed to mitigate an unacceptable risk. Bail conditions can only be imposed if (s. 20A (2) Bail Act);

(a) the bail condition is reasonably necessary to address a bail concern, and
(b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and
(c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and
(d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and
(e) it is reasonably practicable for the accused person to comply with the bail condition, and
(f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

Bail conditions can be:

conduct requirements

security requirements

character acknowledgment

accomodation requirement

Conduct Requirement

A conduct requirement is a requirement that a person do or refrain from doing anything, but not providing security: s. 25 Bail Act.

Security requirement

A security requirement is a requirement that the accused or one or more other persons agree to forfeit a specified amount of money if the accused fails to appear in court, with or without security: s. 26 Bail Act.

A security requirement is only to be imposed to mitigate the risk of the accused not appearing in court (s. 26 (5)), and only if conduct requirements could not mitigate thata risk (s. 26(6)).

Character acknowledgment

A character acknowledgment is an acknowledgment that a person is acquainted with the accused and regards him as a responsible person who is likely to comply with bail: s. 27 Bail Act.

Accomodation requirement

A court may impose an accomodation requirement on a child to the effect that bail will not be granted until the authorities have made suitable arrangements for the accomodation of the child: s. 28 Bail Act.

Pre-release requirements

A bail condition is a pre-release requirement if the condition must be complied with before the person is released on bail. The only bail conditions which may be pre-release requirements are (s. 29 Bail Act):

a conduct requirement to surrender a passport;

security requirements

character acknowledgments

accomodation requirement

Enforcement conditions

A court may impose an enforcement condition, requiring the defendant to comply with specified kinds of police directions to monitor compliance: s. 30 Bail Act.

Limitations on jurisdiction to consider bail

The Local Court and the District Court can make a decision about appeals bail after conviction if the accused has not yet appeared in a higher court: s. 62 Bail Act.

The Local Court can consider bail after committing an accused for sentence or trial to a higher court, but not after the accused has appeared in the District Court or Supreme Court: s. 68 Bail Act.

Further applications for bail

Where a court has refused bail, it is not to hear a further bail application for bail unless (s. 74 Bail Act):

not legally represented on the last occasion;

relevant information was not presented on the last occasion;

circumstances relevant to the bail application have changed; or

the accused is a child

Proof in bail applications

The purposes of the Bail Act include a requirement that bail authorities determinaing a bail application have regard to the presumption of innocence and the general right to be at liberty: s. 3 Bail Act. This suggests that the onus of proof is on the prosecution.

If the Crown appeals against a decision to grant bail and immediately so informs the court, the decision is stayed for 3 business days or until the Supreme Court decides otherwise (s. 40 Bail Act). There is no 'principle of restraint' in relation to applications for detention made in the CCA after Supreme Court bail has been granted: Regina v Marcus [2016] NSWCCA 237, esp at para [27].

(e) Crime Commission and Related Bodies

The NSW Crime Commission

The NSW Crime Commission is increasingly important in the
criminal investigatory process. What follows is simply some suggestions about the
basics of appearing in the Crime Commission.

Appearing for an Witness in the Crime Commission

A person giving evidence before the Crime Commission can
be legally represented (s. 22 Crime Commission Act).
A particular legal representative can be refused leave to appear if the Commissioner
believes on reasonable grounds and in good faith that such representation will prejudice
its representation (s. 22 Crime Commission Act).

The Crime Commission can and usually does as a matter of course direct that evidence
before it, and even the fact that a witness has given evidence before it, not be
'published': s. 45 Crime Commission Act.

By far the most important thing to know about proceedings in the Crime Commission
is that evidence given by a witness is not admissible in proceedings against that
witness (except for proceedings for perjury and related offences) if the witness
objects: s. 39 Crime Commission Act.
The Commissioner can declare that all answers or all answers of a particular class
will be regarded as being given under objection: s. 39(6). If there is the faintest
suspicion that your client is a suspect, you should advise him/her to object to giving
evidence.

Failing to attend when served with a summons, or failing to take the oath, or failing
to answer questions, is an offence which carries 20 penalty units or 2 years gaol: s. 25 Crime Commission Act.
The requirements of proof of a failure to take an oath or affirmation have been strictly
construed in Fehon v Domican (2002) 127 A Crim R 592 .

Providing the prosecution with transcripts of an accused's evidence from the Crime Commission

In X7 v Australian Crime Commission [2013] HCA 29 a majority of the High Court held that there was no power to compulsorily examine an accused about an offence with which he has been charged (per French CJ and Crennan J at para [54], Hayne and Bell JJ at para [156], Kiefel J at para [162]).

The High Court has held that where the evidence of an accused who has given evidence before the Crime Commission about an alleged offence has been supplied to the investigating police and the prosecution, any resulting trial will give rise to a miscarriage of justice: Lee v the Queen [2014] HCA 20.

are Table 1 or Table 2 offences for which there has been
no election to have the matters dealt with indictably (see below).

Summary Proceedings: Commencing Proceedings
An information for a purely summary offence must be laid within 6 months of the offence
being committed: s. 179 Criminal Procedure Act. Importantly, the 6 month time limit does not apply to indictable matters being dealt with summarily. However, if the matter is a penalty notice matter and the defendant has elected to have the matter dealt with in the Local Court, the time limit is extended to 12 months: s. 37A Fines Act.

Query if a charge can be withdrawn by an informant without being withdrawn dismissed:
Gregg v O'Connor (Sully J, 21/4/92), overruled in Lay v Cleary [Bulletin 67]. A magistrate
has no power to recharge: Suters v Harrington [CN 113].

A magistrate can order a stay of proceedings: DPP v Shirvanian (1998) 44 NSWLR 129.

Summary Proceedings: Service of a Brief

In all summary proceedings except those for which a penalty
notice may be issued, if the defendant pleads not guilty the prosecution must serve
on the defendant a copy of the brief of evidence, including all witness statements
and proposed documentary exhibits, 14 days before the hearing or such other time
as the magistrate determines (s. 183 Criminal Procedure Act).
It appears that the brief should include listening device warrants and telephone
intercept warrants (DPP v Webb [2000] NSWSC 859) but
not search warrants (DPP v Southorn [1999] NSWSC 786).

If the brief is not served, the magistrate may dispense with service, adjourn the
proceedings (s. 187 Criminal Procedure Act),
or refuse to admit the evidence (s. 188 Criminal Procedure Act). In determining whether or not to refuse to admit the evidence the magistrate is exercising a discretionary judgement and should weigh up the competing policy considerations including the quick and efficient disposal of criminal proceedings (on the one hand) and the public's interest in prosecuting offenders: DPP v Fungavaka [2010] NSWSC 917.

Must the defendant be present?

It has been held that where a defendant is not on bail, it is not necessary for the defendant to be personally present during a hearing if he or she is legally represented: McKellar v DPP [2014] NSWSC 459.

Where a defendant has appealed to the legal Aid Review Committee, or intends to so appeal, the court must adjourn the proceedings if the appeal is bona fide and not vexatious or frivolous or intended to delay proceedings unless there are special circumstances: s. 57 Legal Aid Commission Act.

Prima facie the existence of an appeal or an intention requires the adjournment. It is only in circumstances where the appeal or intention to appeal is not bona fide, not frivolous or vexatious or not otherwise intended “to improperly hinder or improperly delay” the conduct of the proceedings that the adjournment may not be granted.

Summary Proceedings: Open, Closed, and Non-Publication
Orders

Generally, summary proceedings are to be in open court,
that is open to the public and the media: s. 191 Criminal Procedure Act. This
general rule is subject to some important statutory and common law exceptions. In particular, under the Court (Suppresion and Non-Publication Orders) Act (2010) courts can make suppression or non-publication orders as to the identity of the accused, a witness, or any party to proceedings, or as to the evidence in proceedings, for a limited period.

In sexual assault cases (in particular in this context including indecent
assault), the court can close the court (s. 291 Criminal Procedure Act).
Such an order can include suppression of the name of the accused: Crampton v DPP
(NSW C of A, 7/7/1997). In a decision about the predecessor of this section, it was
held that the interests of the accused were relevant in determining whether or not
to make an order forbidding publication: Nationwide News v District Court of NSW
(1996) 40 NSWLR 486.

At common law, the power to make a non-publication order was limited. The name of an accused can be suppressed if it is necessary to secure the proper administration of justice: C v R (1993) 67 A Crim R 562 at 565. It was held that the District Court had no power to order the non-publication of the fact of a verdict even if there were to be later trials of the same accused: John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344.

Normally costs will not be awarded to a successful defendant unless the investigation
was unreasonable or the proceedings were initiated without reasonable cause: s. 214 Criminal Procedure Act.
An adjournment can be granted on condition that the Crown pays costs: Le Bouriscot
(1996) PD [178].

A magistrate cannot impose a cumulative sentence on a prisoner who is serving
a sentence which would mean that the new sentence would expire more than five years
after the existing sentenced commenced : s. 58 Crimes (Sentencing Procedure) Act.

A committal is an administrative proceeding in the Local
Court to determine whether or not a person charged with an indictable offence should
be committed for trial or sentence in the Supreme Court or District Court (s. 3 Criminal Procedure Act).

Procedure in Committals

The magistrate hearing the committal must set a timetable
for the prosecution to serve a copy of the brief (including statements of all witnesses)
on the defendant, and for the defendant to indicate which witnesses are required
to give oral evidence (s. 60 Criminal Procedure Act).

If
a witness is not required to give oral evidence, the witness' statement can be tendered. Practitioners should be very conscious of the fact that
if a crucial witness is not required for cross-examination, and the witness's statement
is tendered at the committal, if that witness later dies or is so ill that he/she
cannot give evidence, the statement can be tendered at trial: s. 285 Criminal Procedure Act.
As a result in if a witness gives damaging evidence against the accused, which evidence
is in dispute, it is always preferable to require that witness to give evidence
at committal. Even if nothing is achieved in cross-examination, the simple fact of
the witness having to give an account on oath creates a potential prior inconsistent
statement.

Committals: Requiring Witnesses for Cross-examination
The magistrate should not require a witness in an offence involving violence (eg
attempted murder, reckless wounding, reckless inflict grievous bodily harm, abduction,
robbery, sexual assault) to give evidence unless there are 'special reasons in the
interests of justice': s. 93 Criminal Procedure Act. The
phrase 'in the interests of justice' has been held in another context to refer to
incorporate 'as a paramount consideration that an accused person should have a fair
trial' : Chapman v Gentle (1986) A Crim R 29.

Special reasons

Special reasons may include where the Crown case is weak,
ID in issue, inconsistent versions, victim's willingness to testify: Baines v Gould
(1993) 67 A Crim R 297. Special reasons may include where the complainant in a sexual
assault case is vague about the dates of the offences: Kennedy (1997) 94 A Crim R
341, TS v George (1998) 5 Crim LN [843]. This applies to indictable matters which
can be dealt with summarily unless summary jurisdiction is actually offered: Kant
(1994) PD [261], CN [152].

Substantial Reasons

For other types of offences, the magistrate should not require
a witness to give evidence unless there are 'substantial' reasons in the interests
of justice: s. 91 Criminal Procedure Act. 'Substantial
reasons' is 'obviously much wider' than special reasons: Kennedy (1997) 94 A Crim
R 341. 'Substantial' does not mean special. It is not necessary to show that the
case is exceptional or unusual. It may be that substantial reasons could be shown
in a majority of cases: Losurdo v DPP (1998) 44 NSWLR 618, (1997) 101 A Crim R 196 (approved by the Court of Appeal in Losurdo (1998) 44 NSWLR 618,
103 A Crim R 189), this decision appears to have the specific approval of the former
Attorney General: see 'Committals in NSW' (2000) 74 ALJ 24).

It is necessary to show
that the reasons 'have substance in the context of the nature of committal proceedings
and the provisions of the Justices Act relating to them': Losurdo (1998) 103 A Crim
R 189.

'Substantial reasons' can include a case where cross-examination
might substantially undermine the credit of a significant prosecution witness: Losurdo v DPP (1998) 44 NSWLR 618. They
can also include a case where the matters to be the subject of cross-examination
go only to the exercise of the discretion of the trial judge (and thus strictly outside
the jurisdiction of the magistrate): Losurdo v DPP (1998) 44 NSWLR 618. The availability of 'Basha' type voir dires and pre-trial applications at trial is
no justification for not permitting cross-examination at the committal: Dawson v DPP [1999] NSWSC 1147.
The magistrate needs to consider separately in relation to each witness whether the
witness should be required: Hanna v Kearney (1998) 5 Crim LN [867]. 'Substantial reasons' might include narrowing the matters in dispute: Hanna v Kearney. 'Substantial reasons'
are not limited to matters which might result in discharge at committal: Hanna v Kearney.

It is not possible to define the boundaries of "substantial
reasons" in this context: Losurdo, C of A, pp 622, 632. A potential narrowing
of the issues to be determined at trial, if the defendant is committed, is within
the term; so also is the possibility of establishing the foundation for a challenge
to the admission or admissibility of evidence (Hanna p 8; Losurdo,
C of A pp 631-2); the possibility of significantly undermining the credibility of
a Crown witness (Losurdo, C of A p 631); clarification of the evidence proposed
to be called so as to avoid a defendant being taken by surprise at a trial (Losurdo,
C of A, p 631); and the opportunity of gaining relatively precise knowledge of the
case against the defendant (Hanna, p 5).

20 I shall now set out, in summary form, my understanding of a number of the relevant principles. Because of its brief nature, this statement will not be as elegantly expressed as the full statement of the principles in earlier decisions. Secondly, I will not attempt to summarise every principle arising from previous authority. Thirdly, I will emphasise, where necessary, matters that are of significance to the present dispute. I take the relevant principles to be as follows: -

1. The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal.

2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.

3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial.

4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.

5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.

6. Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.

7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.

8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial.

A witness cannot be required for cross-examination if the
Crown indicates that the Crown no longer relies on the evidence: DPP v Tanswell (1998)
103 A Crim R 205. Where a witness has been required for cross-examination because
of particulars matters, normally cross-examination will be restricted to those matters.

Committals: Taking of Evidence

When a witness is required to give evidence in a paper committal, the prosecution
is not entitled to merely tender the statement of the witness in chief unless the parties consent, or if the magistrate is satisfied that there are substantial reasons in the interests of justice why this should be done: section 91(4) Criminal Procedure Act.

Generally, committal proceedings are to be in open court,
that is open to the public and the media: s. 56 Criminal Procedure Act This
general rule is subject to some important statutory and common law exceptions. In particular, under the Court (Suppresion and Non-Publication Orders) Act (2010) courts can make suppression or non-publication orders as to the identity of the accused, a witness, or any party to proceedings, or as to the evidence in proceedings, for a limited period. In sexual assault cases (in particular in this context indecent
assault), the court can close the court (s. 291 Criminal Procedure Act) and can also forbid the publication of part or all of the evidence (s. 292 Criminal Procedure Act). Such an order can include suppression of the name of the accused: Crampton v DPP (NSW C of A, 7/7/1997). In a decision about the predecessor of this section, it was held that the interests of the accused were relevant in determining whether or not to make an order forbidding publication: Nationwide News v District Court of NSW (1996) 40 NSWLR 486.

At common law, the power to make non-publication orders is more limited. The name of an accused can be suppressed if it is necessary
to secure the proper administration of justice: C v R (1993) 67 A Crim R 562 at 565.

Committals: the Test.
At the close of the prosecution case in a committal the magistrate must determine
whether or not there is a prima facie case: s. 62 Criminal Procedure Act. At
the conclusion of all the evidence (this may be immediately after; it is very unusual
for the defence to call evidence at a committal), the magistrate must then determine
whether or not 'there is a reasonable prospect that a jury would convict': s. 64 Criminal Procedure Act.

If
the magistrate decides that there is a reasonable prospect that a jury would convict,
the defendant is committed for trial to either the District or the Supreme Court.
If the magistrate decides that there is no reasonable prospect that a jury would
convict, the magistrate must discharge the defendant.

Magistrates are not precluded from making their own assessment of the evidence and
of the credibility of witnesses: Saffron (1989) 16 NSWLR 397. The assessment can
take into account a prediction of whether the trial judge will exclude evidence in
the exercise of his discretion: Grassby v The Queen (1989) 168 CLR 1.

Decisions of magistrates

The magistrate is required to give adequate reasons for a decision and failure to do so will constitute an error of law: DPP v Elias [2013] NSWSC 28 esp at para [44].

Lack of a (proper) committal does not of
itself entitle a stay of the trial: Butler (1991) 56 A Crim R 231, Duffield and Dellapetrona
(1992) 64 A Crim R 18. The Crown is not obliged to frame the indictment in terms
of the counts in the committal: Kolalich (1990) 19 NSWLR 520.

Effect of a No Bill
A no bill will only justify a stay of later proceedings if there is a degree of double
jeopardy (such as a case being no billed during the course of the trial): Mellifont
(1992) 64 A Crim R 75, Swingler (1995) 80 A Crim R 471. See also Regina v Burrell [2004] NSWCCA 185. In particular if there is a no bill after discharge at committal, the Crown will not be preventd from filing a further ex officio indictment: D v Regina [2016] NSWCCA 60 (not currently available on the internet).

Counsel's Brief.
Police who search an advocate's papers may be in contempt of court even if they believe
that it contains documents suspected of being stolen: MacDonald and Shilling (1993)
70 A Crim R 478.

Legitimate Forensic Purpose.
Counsel calling upon the subpoena should be able to identify with precision the legitimate
forensic purpose for which the document is sought: Saleam (1989) 39 A Crim R 406, Alister v The Queen (1983-4) 154 CLR 404. It
must be 'on the cards' that the documents would assist the defence case. A report
by a principal Crown witness about the case is an example of such a document, even
if nothing is known about its contents: Alister at 414, 451. Prima facie
anything which might provide for proper and fruitful cross-examination is allowable:
Maddison v Goldrick [1976] 1 NSWLR 651 esp at 663-4, Saleam. For example, in a case where the prosecution relied on only a small proportion of a large group of a large group of intercepted calls, there was held to be a legitimate forensic purpose in requiring production of the other tapes: Regina v Taylor (2007) 169 A Crim R 543.

It is not a 'legitimate forensic purpose' to want to check if the Law Enforcement (Controlled Operations) Act has been complied with: AG v Chidgey [2008] NSWCCA 65.

Width.
A subpoena will be set aside if it is too wide, for example if it requires production
of all documents relating to a particular subject area (Small (1938) 38 SR (NSW)
564) although the words 'relating to' in themselves are not necessarily fatal: Spencer
Motors v LNC [1982] 2 NSWLR 921. Once the documents are produced it is too late to
take this objection: Saleam.

Public Interest Immunity.
When public interest immunity is claimed, the court must weigh up the public interest
in non-disclosure with the public interest in the administration of justice. In a
criminal case it is sufficient if the accused can establish that the documents will
materially assist his case: Alister.

Special Classes of Public Interest Immunity.
Some classes of evidence will not be required to be disclosed unless the evidence
is necessary to establish the innocence of the accused:

identity of informers (Cain v Glass (1985) 3 NSWLR 231,
Meissner (1994) 76 A Crim R 81), even if known to the accused (AG v Stuart (1994)
75 A Crim R 8), unless would help to show the accused is not guilty (D v National
Society for Prevention of Cruelty to Children [1978] AC 171, Smith (1996) 86 A Crim
R 308, Abdullah [1999] NSWCCA 188 esp at
paras [22] to [23]).

location of listening posts, provided there is evidence that at the time of arrest
and trial the owner objects: Rankine (1986) 83 Cr App R 19, Johnson (1989) 1 All
ER 121

arguably not methodology (Brown (1988) 87 Cr App R 52).

Costs.
It seems that costs cannot be ordered in favour of a party who successfully opposes production of
documents under subpoena: Stanizzo v Complaint [2013] NSWCCA 295 and Ansett
Holdings (Qld SC, (1997) 94 A Crim R 7) but compare Carter v Mallesons (WA FC 15/7/93).

(b) Trial Procedure

Adjournments.
Normally an unrepresented accused should be granted an adjournment if he can prove
that it was through no fault of his own:Dietrich v The Queen (1993) 177 CLR 292, 67 ALJR 1 (1992) 64 A Crim R 176, Small (1994) 72 A Crim R 462. Lack of an adequate interpreter may
suffice to quash a conviction: Saraya (1994) 70 A Crim R 515. Where the Crown seeks
an adjournment, the court can tell the Crown that the adjournment will not be granted
unless the Crown agrees to pay costs: Moseley (1992) 65 A Crim R 452.

Where the accused seeks a judge alone trial, and the prosecution opposes it, there is no presumption in favour of a judge alone trial, nor does the accused have a burden of proof to establish that there should be a judge alone trial, although there is an evidentiary onus: Regina v Belghar [2012] NSWCCA 86 at para [96]. The fact that the accused elects to be tried by judge alone is a relevant factor in determining whether or not a judge alone trial would be in the interests of justice: Regina v Simmons and Moore (No. 4) [2015] NSWSC 259, approved in Redman v Regina [2015] NSWCCA 110 at para [13]. There is no consensus in the cases that where there are issues of credibility that factor militates strongly in favour of a jury trial: Regina v Simmons and Moore (No. 4) [2015] NSWSC 259 at para [75], approved by the NSW Court of Criminal Appeal in Redman v Regina [2015] NSWCCA 110 at para [14]. In Redman the Court of Criminal Appeal held that it was an error of law to reject an application for a judge alone trial on the basis of an assumption that a jury was a superior tribunal of fact in a word against word case (at para [17]).

Stay of Proceedings
A permanent stay of proceedings will only be granted in an extreme case: Jago
v District Court (NSW) (1989) 168 CLR 23 at 34.
It is necessary to show that the continuation of proceedings would involve an involve unacceptable injustice or unfairness, or be so unfairly and unjustifiably oppressive as to constitute an abuse of process: The Queen v Edwards (2009) 255 ALR 399 esp at [23]. The High Court in a unanimous judgment has said that a statement of Mason and Toohey JJ. in The Queen v Glennon (1992) 173 CLR 592 (at para [28]) that 'a stay of proceedings will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences' as an authoratative statement of principle: Dupas v The Queen [2010] HCA 20 at para [18].

A stay of proceedings until particulars were supplied was upheld in Compston (1993)
PD [216]. A temporary stay of proceedings was granted where there had been considerable
publicity about similar but unrelated sexual assault allegations in Re K [2002] NSWCCA 374.

A long delay in instituting proceedings of itself (even
of over 30 years) will not justify a stay, unless there is evidence of prejudice
to the accused: Birdsall (NSW CCA 3/3/97). A stay
of proceedings was granted when a matter was not reached 5 times and witnesses and
evidence disappeared: Nicholson (1998) 5 Crim LN [881]. A stay was refused where
Crown exhibits had disappeared in Roberts (1999) 106 A Crim R 67. In The Queen v Edwards (2009) 255 ALR 399 the High Court allowed an appeal against a stay of proceedings in a 6 year old case where the exhibits had gone missing. In RM v Regina [2012] NSWCCA 35 the CCA upheld a decision to refuse to grant a stay in a 20 year old sexual assault special hearing because of the difficulty in obtaining evidence of the appellant's mental health. In TS v Regina [2014] NSWCCA 174 the Court of Criminal Appeal granted a stay in a 37 year old complaint where the accused was 77 years old and in ill health.

The time for presentation of an indictment can be extended by order of the court,
but cannot be extended after the time for filing an indictment has expired: rule 53.10F of the District Court Rules.
If the indictment is not presented within the relevant time, the court may proceed
with the trial, adjourn the proceedings, or take such other action as the court thinks
fit.

An indictment can be signed by the Attorney General, the Solicitor, the Director of Public Prosecutions, a deputy DPP, or a Crown Prosecutor, or a person authorised in writing to sign indictment: s. 126 Criminal Procedure Act. If the indictment is signed by a private Crown prosecutor not so authorised ( it seems few private Crowns are so authorised), any trial or conviction which follows is a nullity: Janceski (2005) 64 NSWLR 10.

Pre Trial Disclosure Generally

In cases where there is no order for pre-trial disclosure,
there are still limited requirements for pre-trial disclosure.

Prosecution Obligation of Disclosure

Under the Bar Rules, prosecutors are required to disclose to the defence all material which could constitute evidence relevant to the guilt or innocence of the accused (see rule 66). At common law, the Crown is obliged to inform the defence of any material which could be sensibly seen as:

(1) to be relevant or possibly relevant to an issue in the case;
(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).

Material in a victim impact statement should be disclosed to the defence prior to the trial if it contains material which was sufficiently solid to cause reasonable prosecutors to think that cross-examination based on the information might elicit answers materially affecting the credibility of the witness: Lewis-Hamilton (Vic CCA 8/4/97).

Similarly, even if there is no order for pre-trial disclosure,
the defence needs leave of the court to call evidence of alibi unless a Notice
of Alibi was served on the DPP at least 42 days
before the trial is listed for hearing: s. 150 Criminal Procedure Act. The
notice must contain names and addresses of witnesses to be called in support of the
alibi. See the paragraph headed 'Alibi' below. The defence must also give notice of an intention to rely
on the defence of substantial impairment in a murder trial under s. 151 Criminal Procedure Act. See
the paragraph headed 'Notice' in the Chapter on 'Defences'.

Orders For Pre-Trial Disclosure

Under amendments which came into force on 1 September 2013, both the prosecution and the defence are required to make pre-trial disclosure in accordance in accordance with a timetable set down by the court: s. 141 Criminal Procedure Act.

In the District Court, under Practice Note 9 (District Court Practice Notes can be downloaded here), unless the Court otherwise orders, the following time table applies:

prosecution disclosure no later than 3 weeks before the date for trial;

defence disclosure no later than 10 days before the date set for trial

prosecution response before thedate set for trial.

In The Supreme Court, under revised Practice Note 2 (which can be downloaded here) unless the Court otherwise orders, the following timetable applies:

prosecution disclosure no later than 8 weeks before the trial date;

defence response no later than 5 weeks before the trial date;

prosecution response to the defence response no later than 3 weeks before the date for trial;

pre-trial conference before the judge two weeks before the trial date

Prosecution Disclosure Where an Order is Made For Pre Trial Disclosure

(c) copies of statements of all witnesses proposed to be
called at the trial by the prosecution

(d) copies of all documents proposed to be tendered by the
prosecution

(e) if the prosecution proposes to tender a summary of evidence, a copy of that sumary

(f) copies of any document which the prosecution proposes to tender

(g) a copy of chart or explanatory material which the prosecution proposes to tender

(h) if any expert witness is to be called by the Crown, a copy of each report of that witness relevant to the prosecution or defence case

(i) any document, information or any other thing that would be reasonably regarded as relevant to the prosecution or defence case

(j) a list identifying any document, information or other thing which would reasonably be regarded as being relevant to the case and which is not in the possession of the prosecution, with information about where this material might be located

(k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibilty of any prosecution witness

(l) a copy of any information, document, or other thing in the possession of the prosecution that would reasonably be regarded as being adverse to the credibilty or credit of the accused

(m) a list of witnesses identifying the statements of those witnesses who are going to be called at trial by the prosecution

(a) the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial,

(b) the nature of the accused person’s defence, including particular defences to be relied on,

(c) the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue,

(d) points of law which the accused person intends to raise,

(e) notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following:

(i) a statement of a witness that the prosecutor proposes to adduce at the trial,
(ii) a summary of evidence that the prosecutor proposes to adduce at the trial,

(f) a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,

(g) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment).

If the Court orders, the defence response is to also include (s. 143(2)):

(a) a copy of any report, relevant to the trial, that has been prepared by a person whom the accused person intends to call as an expert witness at the trial,

(b) if the prosecutor disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,

(c) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,

(d) if the prosecutor disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed,

(e) notice as to whether the accused person proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,

(f) notice of any significant issue the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges,

The prosecution must indicate what expert evidence is in dispute and what material
which the defence has indicated it wishes to tender will be objected to: s. 144.

Sanctions for Non-Compliance with Pre-Trial Disclosure

Sanctions for non-compliance with pre-trial disclosure include:

the court may refuse to admit evidence which was not disclosed

the court can grant an adjournment to a party if the other
party seeks to adduce evidence which was not disclosed

the judge or, with the leave of the court, any party may
comment on the failure by a party to comply with pre-trial disclosure, but must not
suggest that an accused person failed to comply because he was of believed he was
guilty

The court may not prevent an accused from adducing evidence
or comment on the accused's non-compliance unless the prosecution has complied with
the pre-trial disclosure requirements: s. 146 Criminal Procedure Act.

If an accused fails to comply with the requirements of diclosure, the prosecution or any other party with leave of the court can make comment, and the court or jury draw such unfavourrable inferences as appear proper: s. 146A Criminal Procedure Act.

Withdrawing a Plea.
A plea of guilty can be withdrawn if the defendant shows that otherwise there has
been/would be a miscarriage of justice: Chiron [1980] 1 NSWLR 218 at 235, Boag (1994)
73 A Crim R 35 at 36. A plea of guilty is regarded as an admission to all the legal
ingredients of the offence: Sagiv (1986) 22 A Crim R 73. In order for the defendant
to establish that a plea of guilty to be withdrawn, he must demonstrate that there
there is some circumstance which shows that the plea was not attributable to a genuine
consciousness of guilt: Boag at 37.

Circumstances which may support the withdrawal of a plea include:

where the plea has been entered pursuant to a material
mistake (Sagiv at 80, Boskovitz (1996) PD [268])

where the defendant did not appreciate the nature of the
charge (Boag at 37, Ferrer-Esis (1991) 55 A Crim R 231, Pauli (1991) 55 A Crim R
297)

if the facts presented are different to those pleaded to
(Chow (1992) 63 A Crim R 316 at 320)

where there is no evidence upon which the defendant could
have been convicted (Boag at 37)

where fraud or threats or other impropriety caused the
plea to be entered (Boag at 37)

Separate Trials.
An application for separate trials can be made at any time (s. 21 Criminal Procedure Act) although
it is preferable to make the application prior to the trial. There may be an application for a separate trial in two
situations:

firstly, where an accused is trying to have tried separately
different counts he/she is facing

secondly where an accused in a joint trial is attempting
to be tried separately from his/her co-accused.

There was some authority that where there was a cut-throat defence (that is, each accused blaming the other), there should be a separate trial (Farrell and Cotton
(1990) 48 A Crim R 311). However the more recent trend of cases is that in where there is a cut throat defence, there should be a joint trial, unless there was some 'special or other' feature which required separate trials: Ali v The Queen (2005) 214 ALR 1, 79 ALJR 662 (see esp para [58]), and Fernando [1999] NSWCCA 66. There should be separate trials when

where in a ROI the co-accused gives the accused a history of the accused's violence:
Jones and Waghorn (1991) 55 A Crim R 159

where a co-accused attacks the character of Crown witnesses (Taouk (1993) PD [27]).

A separate trial should be granted when:

1. Where the evidence against an applicant for a separate trial
is significantly weaker than and different to that admissible against another, or
the other accused to be jointly tried with him; and

2. Where the evidence against those other accused contains material highly prejudicial
to the applicant, although not admissible against him; and

3. Where there is a real risk that the weaker Crown case against the applicant will
be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial (Middis, Hunt J, u/r 27/3/1991, quoted in Dinh (2000) 120 A Crim R 42 at para [28].
In Pham [2004] NSWCCA 190 at paras
[39] to [40] it was doubted that it was necessary to show that the case against the
accused was weaker. It was also said that 'immeasurably' in this context means 'significant,
though incommensurate' or disproportionate.

Change of Venue.
In order to obtain a change of venue the accused must satisfy the court that there
is a reasonable possibility that the accused will not get a fair and impartial trial:Webb and Hay v The Queen (1992) 181 CLR 41, 64 A Crim R 38.
The power to change venue is given by s. 30 Criminal Procedure Act.
Joint Trials.
In a joint trial the judge should present the case against each accused separately:
Masters (1992) 59 A Crim R 445 at 448.

Generally the accused must be present at every stage of the trial: Jamal v Regina [2012] NSWCCA 198 esp at para [35]. However, if the accused absconds during the course of the trial, the judge has a discretion about whether the trial should continue or not: Williams v Regina [2012] NSWCCA 286. It is not clear what the responsibilities of counsel are in this situation, that is whether to withdraw or to proceed to appear, but probably the better view is that counsel should assume his or her instructions have been withdrawn.

Jury Challenges.
The accused has 3 peremptory challenges to jurors (s. 42 Jury Act). The Crown has
the same number of challenges as all the accused put together: s. 42 Jury Act, Dickens [1983]
1 NSWLR 403. The old rule that there were more challenges in a murder trial has been
abolished.

The DPP Guidelines state that the right
to challenge 'should never be exercised so as to attempt to select a jury that is
not representative of the community, including as to age, sex, ethnic origin, religious
belief, marital status, or economic, cultural or social background' (DPP Guideline 25).

Discharge of Individual Jurors

An individual juror can be discharged through death, illness
or any other reason. A criminal trial can proceed with as few as 10 jurors, and with
as few as 8 if the prosecution and the accused both consent or if the trial has been
going for at least 2 months: s. 22 Jury Act. Where a juror is
discharged through illness, it is not necessary for the judge to be satisfied that
the juror will not recover quickly:Wu v The Queen (1999) 199 CLR 99. The judge must make 2 separate steps: first, to determine whether the individual juror should be discharged, and then to determine whether or not the trial can continue with the reduced jury. The jury can
be reduced below 12 in Commonwealth cases despite the constitutional guarantee of
'trial by jury':Brownlee v The Queen (2001) 207 CLR 278.

A juror should not be discharged where there is evidence that that juror would, if not discharged, have voted for an acquittal: BG v Regina [2012] NSWCCA 139 esp at para [103].

Plea After Empanelling.
If there is a plea of guilty during a trial, the jury can be discharged and the judge
can find the accused guilty: s. 157 Criminal Procedure Act.
At common law, once the jury is empanelled, only it can find the accused guilty,
even if there is a plea: Ross (1994) PD [175]. Once a judge has made a finding that
the accused is guilty under s. 157, the judge has no discretion to allow the plea
of guilty to be withdrawn: Regina v Hura (2001) 121 A Crim R 472 .
Plea by Co-Accused in Front of the Jury.
It is an error to have a co-accused plead in front of the jury: Velardi (NSW CCA 24/5/96). The
plea of a co-accused is not evidence against the accused: Cowell (1985) 24 A Crim
R 47 at 49. This also applies to an alleged co-offender who becomes a Crown witness: Nale [2002] NSWCCA 31. However, although it is preferrable if the plea is entered in the absence of the jury, if the plea is enteredin front of the jury, and appropriate directions are given, no succesful ground of appeal may arise: Humphries v Regina [2015] NSWCCA 319.
Crown Opening.
If the evidence falls short of the Crown opening there may be an entitlement to a
discharge: Owen (1991) 56 A Crim R 279. The Crown is apparently entitled to refer to itself as bringing charges on behalf of the community: Skipworth [2006] NSWCCA 37.

not press for a conviction beyond putting the case fully
and firmly (rule 63)

not endeavour to inflame or prejudice the jury (rule 64)

advise defence counsel of the existence of any witness who he does not propose to
call but who he considers relevant to the defence (rule 66)

not act as an advocate for a vindictive sentence or a sentence of a particular magnitude
but be ready to assist the court to avoid appellable error (rule 71)

inform the accused all material which could constitute evidence relevant to the
guilt or innocence of the accused (rule 66, DPP Guideline 18)

inform the defence of the record and any indemnities and criminal record of any informers the Crown intends to call (DPP Guideline 16)

It has been held that cross-examining a defence witness about an old prior criminal conviction, without informing the defence, or seeking a ruling from the trial judge, was a 'serious departure from the standards of conduct rquired by a Crown prosecutor': Montgomery v Regina [2013] NSWCCA 73 esp at para [6].
Transcript.
A conviction was quashed in Khalifeh (1996) 85 A Crim R 68 where the appellant in a 32 day case had no transcript.

The DPP Guidelines state that 'the
Crown should generally call all apparently credible witnesses whose evidence is essential
to the complete unfolding of the Crown case or is otherwise material to the proceedings'
(DPP Guideline 26). 'Mere inconsistency
of the testimony of the witness with the Crown case is not grounds for refusing to
call the witness' (DPP Guideline 26).
Witness not Called at Committal.
If a witness not called at committal is called at trial, the trial judge may order
a voir dire: Basha (1989) 39 A Crim R 337, Sandford (1993) 72 A Crim R 160.

The Voir Dire

Where evidence needs to be called to determine whether or
not evidence should be led before the jury, the evidence on the preliminary question
of admissibility is led in the absence of the jury in what is called a 'voir dire'.
The voir dire can be held before the jury is empanelled: Rule 53.11 District Court Rules.
Reading the Evidence of a Witness Unavailable at Trial
If a witness is dead or so ill as to not be able to travel or is absent from Australia,
the depositions of the committal can be read: s. 285 Criminal Procedure Act,
formerly s. 409 Crimes Act. This includes statements tendered at committal: s. 289 Criminal Procedure Act.
It is not sufficient for s. 285 to apply if the witness
cannot give credible evidence, or cannot give evidence without endangering the witness'
health (Sinanovic (CCA 4/11/92), Brotherton (1993) 65 A Crim R 301). Section 285 only applies to admit evidence at the committal.
It does not apply to a transcript of testimony at trial: Li [2003] NSWCCA 386.

Where an accused is unrepresented at committal, a statement is inadmissible under s. 285 unless the accused is advised
of his rights including the right to seek an adjournment: s. 89 Criminal Procedure Act, Adamiczka
(1994) 71 A Crim R 291.

There is no discretion in NSW to exclude such evidence unless the prejudice outweighs
the probative value: Lynch [1979] 2 NSWLR 775, Gorman v Fitzpatrick (1987) 32 A Crim
R 330, Stackelroth (1996) 86 A Crim R 438 but see Scott and Barnes [1989] 2 WLR 924 , Radford (1993) 66 A Crim R 210, Mendham
(1994) PD [14]. The defence can require the deposition to be read with no
discretion to reject such evidence: s. 286 Criminal Procedure Act, Stackelroth (1996) 86 A Crim R 438.
The jury should be directed that it has not seen the witness to judge his credibility,
or had the opportunity to cross-examine him, and the evidence should be scrutinized
with great care: Horan [1951] VLR 249, Nablerski (1989) 44 A Crim R 434, Scott and
Barnes, Mendham.

The depositions are taken to be a true record unless the contrary is proved: s. 287 Evidence Act.
Objections By Judge.
A trial judge should not reject questions not objected to unless eg the question
is unfair: Lars and Da Silva (1994) PD [273].

Failure of a judge to give reasons for a ruling is an error of law but it will not generally lead to a succesful appeal if the appeal court can independently come to the same conclusion: Madubuko v The Queen [2011] NSWCCA 135 esp at para [22].

Trials: Open, Closed, and Non-Publication Orders

Generally, committal proceedings are to be in open court,
that is open to the public and the media. This general rule is subject to some statutory
and common law exceptions. The name of an accused can be suppressed if it is necessary
to secure the proper administration of justice: C v R (1993) 67 A Crim R 562 at 565.

The publication of the name of a child who is a victim, defendant, or witness in criminal proceedings is generally prohibited, unless the child is over 16 and consents, or if the child is under 16 and the court consents. The court can also permit publication of the name of a child convicted of a serious indictable offence: (s. 15A Children (Criminal Proceedings) Act).

In sexual assault cases (in particular in this context indecent
assault), the court can close the court (s. 291 Criminal Procedure Act) and
can also forbid the publication of part or all of the evidence (s. 292 Criminal Procedure Act).
Such an order can include suppression of the name of the accused: Crampton v DPP
(NSW C of A, 7/7/1997). In a decision about the predecessor of this section, it was
held that the interests of the accused were relevant in determining whether or not
to make an order forbidding publication: Nationwide News v District Court of NSW
(1996) 40 NSWLR 486. Where there are back to back trials of trials involving the same accused, the court may grant non-publication orders: Nationwide News v Qaumi [2016] NSWCCA 97.

Power to Direct an Acquittal.
A trial judge has no power to direct an acquittal on the basis that the evidence
that the evidence is unsafe and unsatisfactory. However if the identification evidence
is unsatisfactory he may take that evidence away from the jury and then direct an
acquittal: R (1989) 44 A Crim R 404. It is not enough that an innocent hypothesis
can't be excluded: JMR (1991) 57 A Crim R 39. It is not sufficient to give a directed acquittal in a circumstantial case simply because there is a hypothesis consistent with innocence: JMR at 44. The judge should consider whether or not there is some evidence which, if accepted, could prove each element of the offence beyond reasonable doubt: Regina v Bilick and Starke (1984) 36 SASR 322 at 337, 11 A Crim R 452, and Regina v XHR [2012] NSWCCA 247.

On a no case submission, the Crown case is taken at its highest, and evidence favouring
the accused is disregarded: Doney v The Queen (1990) 50 A Crim R 157.
Alternative Counts.
If the Crown does not raise an alternative count it should not be left to the jury:
Pureau (1990) 47 A Crim R 230, Cameron [1983] 2 NSWLR 66, King (2004) 59 NSWLR 515 at para [110]. The principles as to leaving alternative counts to a jury were helpfully summarised in King (2004) 59 NSWLR 515 at para [110]. It is undesirbale for an alternative count to be raised by the trial judge for the first time in the summing up (that is, after addresses): Sheen v Regina [2011] NSWCCA 259 esp at para [90].

If the jury is satisfied
beyond reasonable doubt that the accused is guilty of one of two alternative counts,
it need only be satisfied on balance as to which of the two applies: Gilson (1991)
53 A Crim R 344.

In a case where an accused is indicted with an offence (such
as murder) and a less serious offence (such as manslaughter) is left as an alternative,
it appears that no verdict can be taken on the lesser count unless the jury returns
a unanimous verdict of not guilty on the more serious count: Stanton v The Queen [2003] HCA 29, 198 ALR 41.
Dock Statement.
There are no dock statements for people charged after 10th June 1994: s. 31 Criminal Procedure Act. The accused can give a dock statement and sworn evidence:
Lister (1981) 1 NSWLR 110. However the accused can't say in the witness box that
everything he said in the dock was true: Tangmahsuk (1987) 7 NSWLR 551. The judge
may permit notes to be referred to but not read: Schneidas (1981) 4 A Crim R 101.
A corporation may be able to make a dock statement: Elite Wood Products (Kinchington
J 28/8/91, u/r, doubted by the CCA, Bulletin 63).

It appears that a document can be tendered in or after the dock statement if the
accused would have been able to tender it if giving sworn evidence: See Lun and Welsh
(1932) 49 WN 116, Howard (1932) 49 WN 196.
Alibi.
The defence needs leave of the court to call evidence of alibi unless a Notice
of Alibi in writing was served on the DPP at least
21 days before the trial is listed for hearing: s. 150 Criminal Procedure Act. The
notice must contain names and addresses of witnesses to be called in support of the
alibi.

The Crown can normally tender an alibi notice as part of
its case, though each case depends on its facts: Rossborough (1985) Cr App 139. For
this reason great care should be taken in drafting an alibi notice.
The jury should be directed that:

if they accept the alibi they must acquit

if the alibi might reasonably be true they must acquit

if they reject the alibi they must assess the evidence as a whole: Amyouni (CCA
18/2/88 u/r), followed in Steeden (1994) PD [363].

The jury should also be directed that alibi witnesses can
be genuinely mistaken, that even false alibis can be put forward for many reasons,
and that the fact of a false alibi can only be used if the sole reason for the fabrication
was to deceive them: Visser (1994) PD [378].

In Skondin [2005] NSWCCA 417 (esp at para [47]) it was held that a trial judge should be slow to refuse leave to call alibi evidence where no notice has been given unless the Crown has suffered significant prejudice which could not be addressed without significant disruption of the trial. See also Evans (2006) 164 A Crim R 489.
Direction to Convict.
The judge can direct the jury to convict if there is no dispute about any of the
ingredients of the offence:Yager v The Queen (1976-7) 139 CLR 28. If manslaughter
arises as an issue on the facts must be left to the jury but there is no obligation
to put to the jury the option of a merciful verdict of manslaughter. However the
jury strictly has the power to return such a verdict even if that option is not left
to them:Gammage v The Queen (1969) 122 CLR 444 .
Addresses.

Counsel for the accused address after the Crown addresses: s. 160 Criminal Procedure Act.
Counsel for the accused address in the reverse order of the indictment (and thus
also in the reverse order of the order of cross-examining), but see Webb & Hay
(1992) 64 A Crim R 38 at 66.

The Crown address should not suggest that because there was not greater cross-examination
of a Crown witness, or that the witness's evidence was consistent with his prior statements
to the police. The Crown should also not express a personal opinion (such as 'sounds
like a girlfriend to me'): Rugari (2001) 122 A Crim R 1 , Liristis (2004) 146 A Crim R 547. The Crown should not put a submission to the jury that because of their gender the jury female jurors have experience about a particular matter: GDD and NJC v Regina [2010] NSWCCA 62 (per Grove J at para [37]). The Crown should not address the jury to the effect that witnesses have lied if this has never been put to the witnesses: Teasdale (2004) 145 A Crim R 345.

In Regina v Sam and Sam [2009] NSWSC 561 the trial judge permitted the Crown to provide the jury with a document containing references to questions and answers in the accused's record of interview relating to a particular topic.

Summing Up.
The summing up should include a concise summary of the evidence on each legal issue:
Zorad (1990) 19 NSWLR 91. This is so despite the existence of s. 161 Criminal Procedure Act, which says that the trial judge
need not summarise the evidence: Piazza (NSW CCA u/r 16/6/97).

Directions based on differences between the accused's evidence
and matters put to witnesses by counsel for the defence are 'fraught with peril and
should therefore only be used with much circumspection' : Manuta (1990) 54 SASR 17,
cited in Birks (1990) 19 NSWLR 677 at 691. If such directions are given, the jury
should be told that there may be many explanations for such differences, such as
counsel misunderstanding his /her instructions or simply overlooking the instructions.
See also Picker [2002] NSWCCA 78.

Sending the Jury Out.
The jury should be told that they should not commence considering their verdicts
until applications have been made for redirections: Lean & Aland (CCA 22/2/93),
McCormack (1996) 85 A Crim R 445.

A conviction was quashed where inadmissible material was sent to the jury room: Rinaldi
(1993) 68 A Crim R 284, Rudkowsky (1993) PD [2], Vong [2001] NSWCCA 20 but see Minarowska
(1995) 83 A Crim R 78. The test is whether or not it could be said that the jury would have returned the same verdicts if the irregularity had not occurred: Regina v Marsland (NSW CCA 17/7/1991), referred to in Qing An v Regina [2007] NSWCCA 53. Where a juror brought newspaper clippings of a trial into the jury room an appeal was not upheld: Carr v Regina [2015] NSWCCA 186.

A conviction was quashed when the judge read inadmissible
material to the jury: Phipps and Young (1995) PD [389].

Similarly an unauthorised
visit by some jurors to a crime scene led to a conviction being quashed: Skaf (2004) 60 NSWLR 86.

In a case where a juror accessed the fact of a prior trial of the accused for another murder, the conviction of the accused for another murder was quashed: K (2003) 59 NSWLR 431, 144 A Crim R 468.

Before a judge communicates with the jury, it is preferable
that the judge communicates with counsel about what the judge is going to say, and
then communicates with the jury in open court: Colville (2003) 137 A Crim R 543.

Bias.
The test for bias is whether or not a fair minded member of the public would have
a reasonable suspicion of bias of the judge or jury:Webb and Hay v The Queen (1994) 181 CLR 41, 68 ALJR 582, (1994) 73 A Crim R
258. Even a juror being related to a witness may
not suffice: Schumacher (1996) PD [192]. A juror speaking to a Crown witness may
not automatically suffice to lead to a conviction being quashed: Minarowska (1995)
83 A Crim R 78.

The Exhortation.
If the jury appears to be having trouble reaching a unanimous verdict, the judge
may give the jury the 'exhortation'. The exhortation to a jury should not refer to
public cost and inconvenience:Black v The Queen (1993) 179 CLR 44, 68 ALJR 91 at 95,
(1993) 69 A Crim R 248, Yuill (1994) 7 A Crim R 314.Black contains a pro forma exhortation
in the following terms:

"Members of the jury, I have been told that you have
not been able to reach a verdict so far. I have the power to discharge you from giving
a verdict but I should only do so if I am satisfied that there is no likelihood of
genuine agreement being reached after further deliberation. Judges are usually reluctant
to discharge a jury because experience has shown that juries can often agree if given
more time to consider and discuss the issues. But if, after calmly considering the
evidence and listening to the opinions of other jurors, you cannot honestly agree
with the conclusions of other jurors, you must give effect to your own view of the evidence.

Each of you has sworn or affirmed that you will give a true verdict according to
the evidence. That is an important responsibility. You must fulfil it to the best
of your ability. Each of you takes into the jury room your individual experience
and wisdom and you are expected to judge the evidence fairly and impartially in that
light. You also have a duty to listen carefully and objectively to the views of every
one of your fellow jurors. You should calmly weigh up one another's opinions about
the evidence and test them by discussion. Calm and objective discussion of the evidence
often leads to a better understanding of the differences of opinion which you may
have and may convince you that your original opinion was wrong. That is not, of course,
to suggest that you can, consistently with your oath or affirmation as a juror, join
in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often juries are able to agree
in the end, if they are given more time to consider and discuss the evidence. For
that reason, judges usually request juries to re-examine the matters on which they
are in disagreement and to make a further attempt to reach a verdict before they
may be discharged. So, in the light of what I have already said, I ask you to retire
again and see whether you can reach a verdict."

The judge must tell the jury that each juror has a duty to give a verdict according to the evidence, and that if the juror cannot honestly agree with the other jurors he should not. Failure to give this direction is appellable: Timbery v Regina [2007] NSWCCA 355.

Until recently (26 May 2006) verdicts had to be unanimous in New South Wales. However, as from that date, in a state criminal trial, a majority verdict can be returned if

the jury consists of at least 11 jurors

the jurors have deliberated for a period of time (at least 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings

the court is satisfied, after examination on oath of one of the jurors, that it is unlikely that the jury will reach a unanimous verdict after further deliberation (s. 55F Jury Act).

These preconditions are mandatory. In particular, it is not sufficient that the jury has deliberated for 8 hours, the trial judge must make a determination that the jury has deliberated for a reasonable time given the nature and complexity of the case: AGW v Regina [2008] NSWCCA 81, Hanna v Regina (2008) 191 A Crim R 302. It also seems that lunch hours are not to be taken into account as deliberation time, although time getting redirections is taken as part of deliberation time: AG,BR v Regina [2014] NSWCCA 46. A failure to examine one of the jurors on oath will also render the majority verdict liable to be quashed on appeal: RJS v Regina (2007) 173 A Crim R 100, T v Regina [2016] NSWCCA 48 esp at para [51](currently not available on th Supreme Court website).

'Majority verdict' means a verdict of 11-1 in a case where there are 12 jurors, or a verdict of 10-1 in a case where there are 11 jurors.

A jury may be discharged if there has been evidence on oath from one or more of the jurors that the jury us unlikely to reach a unanimous verdict: s. 56 Jury Act. It has been suggested that where a juror is examined for the purposes of s. 56, this should be done in front of the whole jury: Villis v Regina [2014] NSWCCA 74 at para [26].

Once a verdict has been given and the jury have been charged the verdict cannot be
set aside by the trial judge even if the jury reached the verdict under a misapprehension:
Biggs (WA SC 10/9/97, (1997) 4 Crim LN [760]).

Chatting to the Press

The practice of Crown Prosecutors making statements to television and radio was specifically criticised in Sheikh (2004) 144 A Crim R 124 at paras [113] to [114].

Costs

Where an accused is acquitted or discharged either in a
trial or an appeal, the accused can ask the judge for a certificate for costs (s. 2 Costs in Criminal Cases Act).
The certificate must specify that if the prosecution had been in possession of all
the relevant facts, it would not have been reasonable to commence the proceedings;
and that any act of the defendant which contributed to the institution of the proceedings
was reasonable in the circumstances (s. 3 Costs in Criminal Cases Act).
A certificate can be granted where the the proceedings are no-billed between arraignment and the commencement of the trial proper: JC v DPP [2014] NSWSC 228. The certificate should be forwarded to the Director General of the Attorney-General's
Department who may determine the amount of costs to be paid (s. 4 Costs in Criminal Cases Act).

If the jury is discharged (except in the case of a hung jury) the judge can be asked
to provide a certificate under s. 6A of the Suitors Fund Act, certifying
the reason for the discharge of the jury, and that such discharge was not attributable
to the fault of the accused or his legal representatives. This site includes a Precedent
for a Suitors Fund Certificate.

The appeal is by way of rehearing on the transcript of evidence
heard before the magistrate unless the court gives leave on the grounds that it is
in the interests of justice for further evidence to be given: s. 17- 18 Crimes (Appeal and Review) Act. Victims of an offence involving violence can only be required to
give evidence if it is established that there are special reasons why the witness
should attend to give evidence. Other witnesses are only required to give evidence
if there are substantial reasons why the witness should give evidence (s. 19). The judge should consider whether each individual witness should be called, and not make a ruling that all witnesses be called 'en bloc': Charara (2006) 164 A Crim R 39 at para [27].

The rehearing is not a rehearing 'de novo' because normally the evidence that can be called on appeal is limited to the evidence before the magistrate: Gianoutsos v Glykis (2006) 65 NSWLR 539 esp at paras [24] to [31]. Although the reasons given by the magistrate are not part of the evidence it has been held (obiter dicta) that they can be taken into account particularly on the assessment of the credibility of witnesses: Charara v Regina (2006) 164 A Crim R 39 at paras [23] to [24]. It is submitted that this part of the decision in Charara was wrongly decided. The judge should also recognise the advantage of the magistrate who had the advantage of seeing and hearing the witnesses give evidence: Charara v Regina (2006) 164 A Crim R 39 at paras [18] to [19].

The question for the District Court judge hearing a conviction appeal is not whether it has been demonstrated that the magistrate was in error, but whether the District Court judge has been satisfied beyond reasonable doubt of the guilt of the accused: Wood v DPP [2006] NSWCA 240 esp at para [7].

Where the judge intends to make a finding about the appellant's credit different to that of the magistrate based on the depositions at least the judge should warn the parties and give them a chance to call oral evidence: Barendse v Comptroller of Customs (1990) 93 A Crim R 210.

If an application is made to withdraw the appeal this must be done separately: Reischauer
v Knoblanche (1987) 10 NSWLR 40. If the judge intends to increase the sentence he
should give an indication that this is his/her intention to give the appellant an
opportunity to withdraw the appeal: Parker (1993) 65 A Crim R 209.

An appeal from the decision of the District Court on an appeal can be made where the District Court Judge states a question of law to the CCA (s. 5B Criminal Appeal Act).

An appeal from the decision of the District Court on an appeal from the Local Court can be made to the Court of Appeal where the judgement amounts to a jurisdictional error, or the process represents a denial of procedural fairness: Ex parte Blackwell; Re Hateley [1965] NSWR 1061, Toth v DPP [2014] NSWCA 133. An appeal to the Court of Appeal is available under s. 69 Supreme Court Act. There is a privative clause preventing appeals from District Court appeals in cases other than jurisdictional error and denial of procedural fairness (s. 176 District Court Act; Blackwell, Toth v DPP [2014] NSWCA 133 esp at para [6]).

Appeals from the Local Court to the Supreme Court.

Stated cases, statutory prohibition and mandamus have been
abolished as means of appeal from the local court to the Supreme Court. There can
now be an appeal by the the defendant as of right against a conviction order or sentence
from the Local to the Supreme Court but only on a question of law alone: s. 52 Crimes (Appeal and Review) Act. If there is a question of fact or of mixed law and fact
there can only be an appeal with leave of the court: s. 53 Crimes (Appeal and Review) Act

Where there has been a delay before a notice of intention to appeal is filed, the Court should extend the time to appeal if it would be in the interests of justice: Kentwell v The Queen [2014] HCA 37 esp at para [29], overruling the decision of Abdul v Regina [2013] NSWCCA 247 which held that in a case of long delay the applicant had to establish that unless leave to appeal was granted if otherwise a 'substantial injustice' would result.

It appears that there is no time limit on the filing of a Crown appeal, but late
filing of a Crown appeal may lead to the Crown appeal being dismissed: O'Har (2004) 59 NSWLR 596.

The Notice of Intention to Appeal has effect for 6 months after the date it is filed,
but this can be extended by the Court at any time before or after the expiry of that
period: rule 3A. In other words, the filing
of the Notice of Intention to Appeal gives practitioners 6 months to file the formal
Notice of Appeal with grounds and the other documents referred to immediately below.
Currently the Court of Criminal Appeal is being fairly ruthless about enforcing the
6 month time limit, and it is strongly recommended that practitioners enter the expiry
date of the Notice of Intention to Appeal in their diaries.

Notice of Appeal

A Notice of Appeal or Notice of Application for Leave to Appeal must be filed during
the period in which the Notice of Intention to Appeal has effect (see the preceding
paragraph), or, if no such Notice has been filed, within 3 months of the date of
conviction or sentence. This 3 month period can be extended by the Court before or
after the expiration of the period: rule 3B.

At the same time as the Notice of Appeal is filed, the following documents must also
be filed:

grounds of appeal

written submissions in support of the appeal

a certificate filed by the appellant's solicitor that the
transcript of the trial, the summing up, and the remarks on sentence is available

a statement nominating the solicitor and counsel appearing
for the appellant

Appeals Bail.
Bail will only be granted on appeal to the CCA or High Court only in 'special or
exceptional circumstances': s.30AA Bail Act. 'Special circumstances'
may not be constituted by the fact that the gaol term will expire before the appeal
is heard: Chew (1992) 66 ALJR 209 but see Chew (No. 2) 66 ALJR 221.

Transcript

A transcript of the trial is furnished by the CCA registry
of the trial: s. 21 Criminal Appeal Act. The
transcript should include a transcript of the evidence, legal argument, judgments
during the trial, counsel's addresses, the summing up, proceedings after conviction,
and the remarks on sentence: rule 6 Criminal Appeal Rules.
Appeal to the Court of Criminal Appeal.

There is a right of appeal to the CCA on questions of law alone. Appeals on questions
of fact or sentence will only be heard with leave of the court (s. 5 Criminal Appeal Act). The
trial judge can also submit a question of law to the CCA: s. 5A.

It has been held that a refusal to declare a witness unfavourable pursuant to s. 38 Evidence Act is not a ruling on the admissibility of evidence, and so cannot be the subject of a Crown appeal: Milakovic [2004] NSWCCA 199. The Crown cannot appeal against a judge's ruling in favour of the accused that he had succeeded in his plea of autrefois acquit: Stone (2005) 64 NSWLR 413 at para [71]. The Crown cannot appeal against a judge's direction to a jury that there is no case to answer: (Cheng (1999) 48 NSWLR 616 at 621-2).

The accused can appeal against any interlocutory ruling or order only if the trial
judge certifies that the judgment or ruling an interlocutory judgment or order is
fit for determination on appeal, or if the Court of Criminal Appeal gives leave: s. 5F (3) Criminal Appeal Act. For example, a refusal to grant a separate trial is an interlocutory order and can be the subject of a s. 5F appeal: DAO v Regina [2011] NSWCCA 63.

A 'judgment' is a decision of a court which determines the proceedings or an identifiable part of them and which is entered in the records of the court. An 'order' is a command of the court that something be done or not done: Steffan (1993) 67 A Crim R 506, KN v Regina [2017] NSWCCA 249 esp at para [52].

Similarly, a ruling that a particular defence is not available is not an interlocutory judgment: Adamson [2005] NSWCCA 7, nor can accused appeal against a failure to find that there is no case to answer: Lethlean (1995) 83 A Crim R 197. A refusal to allow a Basha inquiry (Regina v Basha (1989) 39 A Crim R 337) is not an interlocutory judgment or ruling which would give rise to a right of appeal: Nicholson v Regina [2017] NSWCCA 38 esp at para [40]. A decision to permit a witness to give evidence by AVL is not 'an interlocutory judgment or order': KN v Regina [2017] NSWCCA 249 esp at para [52].

The Court of Criminal Appeal has said that it will only interfere with a ruling made in the course of a trial in 'wholly exceptional circumstances': Natoli [2005] NSWCCA 292 at para [7].

Conviction Appeals

An appeal against conviction after a plea of guilty will
only be permitted in extreme circumstances, when there is a real doubt about the
guilt of the accused. This will be so even if evidence has been wrongly admitted: Toro-Martinez (2000) 114 A Crim R 533.

The rules of evidence in the Evidence Act stating that certain types of evidence are not admissible mean 'not admissible over objection': Perish v Regina [2016] NSWCCA 89 esp at para [270].

Where no objection was made at trial, leave is required
to argue the matter: Rule 4 Criminal Appeal Rules. It was suggested that it may be
necessary to file an affidavit of counsel explaining why: Hines (1992) 24 NSWLR 737.
However the CCA has said of this practice: 'But
generally speaking it seems to me to amount to no more than an imposition on trial
counsel for little, or no, good purpose' (Moussa (2001) 125 A Crim R 505). Rule 4 applies even if it is argued that the material is inadmissible on different grounds to those advanced at trial: Poniris v Regina [2014] NSWCCA 100 esp at para [55].

In order to obtain leave under rule 4, an appellant must first establish that there is an arguable case of error. Next, the appellant must establish that the error has led to a miscarriage of justice; that is, that the appellant may have lost a chance of acquittal which was fairly open to him: South v Regina [2007] NSWCCA 117 at para [34], Regina v Wilson (2005) 62 NSWLR 346 at paras [20] to [21].

An error of fact in a sentence appeal can only be established
if there was no evidence to support the finding, or the evidence was all the one
way, or if the judge misdirected himself: O'Donoghue (1988) 34 A Crim R 397, Khouzame [2000] NSWCCA 505.

Where the decision appealed against is a decision or ruling of a discretionary nature (for example, a decision not to exclude evidence on a discretionary basis, or a decision not to exclude propensity evidence), it is not sufficient if the appeal court would have reached a different decision, the appellant must demonstrate that there has been an error in exercising the discretion, such as acting on wrong principle, taking into account irrelevant considerations, failing to take into account relevant considerations, or mistaking the facts: House v The King (1936) 55 CLR 499.

Recently
there has been a disinclination to make use of the proviso even in otherwise strong
Crown cases: Whittaker (1993) 68 A Crim R 476 at 484,Gilbert v The Queen (2000) 201 CLR 414 at [86].
The Court of Criminal Appeal said in Rees v Regina [2010] NSWCCA 66 at paras [19] to [20] that it was not aware of a case where the proviso had been applied where the case was one of oath against oath.

The principles are summarised by Kirby J in Abou-Chabake (2004) 149 A Crim R 417 at
para [63]. In a conviction appeal, a ground of appeal relying on fresh evidence will
usually be framed this way: 'A miscarriage of justice resulted from the absence at
the trial of fresh evidence'. Fresh evidence entitling a retrial may be evidence from
the Royal Commission that the police committed perjury in other matters: McClaren
(NSW CCA 22/10/96), Vastag (NSW CCA u/r 20/6/97), Baartman (NSW CCA u/r 30/6/97)

As to fresh evidence on sentence appeals, the evidence must:

be of such significance that the sentencing judge may have
regarded it as having a real bearing on the sentence;

the appellant did not know of or did not realise the significance of the material;
and

Normally events that take place after sentencing are regarded as a matter for the
executive, not the courts: Many (1990) 51 A Crim R 54 at 62, Moreno (1994) PD [583].
Convictions Unreasonable or Cannot Be Supported By the Evidence

Where there is an appeal against a conviction appeal in a judge alone trial, the test for whether or not the unsafe and unsatisfactory ground is made out basically the same as for a jury trial, but the CCA can take into account findings of the trial judge as to credibility: Arun v Regina [2010] NSWCCA 214.

In RAT (2000) 111 A Crim R 361 it was
held that where the only direct evidence of the offences is the evidence of the complainant,
if the jury finds the accused not guilty of one count the jury must find him not
guilty of all counts. However in Markuleski (2001) 52 NSWLR 82 a
5 judge bench of the CCA said that this was true only if there was nothing at all
which differentiated the counts which the jury accepted beyond reasonable doubt from
those where the jury was not so satisfied. This approach was adopted by the High
Court in MFA v The Queen (2002) 213 CLR 606. It has been said
that the test is now 'whether as a matter of logic and reasonableness the court is
satisfied, after considering all the relevant circumstances of the case, that there
is an acceptable explanation for the differentiation between the divergent verdicts': NEK [2001] NSWCCA 392. If there
is no such explanation, the verdicts are inconsistent.

As to whether, having found there are inconsistent verdicts, there should be an
acquittal or a new trial, see Bonat [2004] NSWCCA 240 at para [106].

The order of the Court after a succesful conviction appeal

In general, where an appeal ground which succeeds is that the verdict(s) were unreasonable or cannot be supported by the evidence, or that the verdicts of the jury are inconsistent, the resulting order will generally be that the conviction be set aside and that a verdict of not guilty be substituted.

Where the appeal ground which is successful is that there has been an incorrect ruling on evidence, or procedural unfairness, or a misdirection in the summing up, the resulting order will generally be that there be a retrial. There may be cases where the CCA will enter a verdict of not guilty where the sentence imposed has been substantially served.

Post conviction admissions may be relevant to the question of whether or not a retrial should be ordered: TDP v Regina [2013] NSWCCA 303 esp at para [128].

Time to Count.
The court has a discretion whether or not to allow time to count after an appeal: s. 18(3) Criminal Appeal Act. In
practice time to count has always been granted, but in theory time should ordinarily
count only in arguable cases (Brennan [1974] 1 NSWLR 618) but not otherwise (Cutherberson
[1974] 1 NSWLR 672, and Shutt (1987) 5 NSWLR 232).The Court has warned that in unarguable cases that time to count should not be allowed : Vai v Regina [2015] NSWCCA 303.

Appeals Against Sentence

Section 6(3) of the Criminal Appeal Act permits the Court of Criminal Appeal to impose a lesser sentence if 'some other sentence in law was warranted in law and should have been imposed'. It has been held that as a result it is not sufficient in a sentence appeal to establish that there has been an error of law in the sentence proceedings. It is also necessary to satisfy the court that some other sentence was warranted in law and should have been imposed: Simpson (2001) 53 NSWLR 704 at para [79]. In practice this means that in a sentence appeal by an offender, it is usually necessary to establish that the sentence is excessive and that there is an error of law.

Where an error of law is establshed, an appeal court should not then move to consider whether or not the error of law affected the sentence imposed. The appeal court should move to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601 esp at para [42].

The fact that a judge makes an error about the maximum penalty for an offence will justify leave to appeal, but it will only be a material error if the error effects the sentence imposed, and the appeal will only be allowed if there the Court is of the opinion that a lesser sentence should have been imposed. It is not necessary to establish that the the sentence was manifestly excessive: RLS v Regina [2012] NSWCCA 236 esp at paras [112] to [116].

The Court of Criminal Appeal has made it clear that it will be slow to conclude that the assessment of objective gravity of an offence by the sentencing judge was incorrect: Regina v Mulato [2006] NSWCCA 282 esp at paras [37] and [45] to [46]. Where it is argued that the judge has made an error in the assessment of objective gravity, this should be a separate ground of appeal: Hurmz v Regina [2017] NSWCCA 235 esp at para [20].

Where the ground of appeal relied upon is that the sentence is manifestly excessive (or manifestly inadequate), it is necessary to demonstrate that the sentence was unreasonable or plainly unjust: Makarian v The Queen (2006) 228 CLR 357 at [25]. It is not an arguable ground of appeal to argue that a sentence was too severe: Mammone v Regina [2013] NSWCCA 95 at paras [27] to [28].

(a)A finding by an appellate court of manifest excess means that "the result embodied in the sentencing judge's orders was 'unreasonable or plainly unjust'": Hili at 538 [58]; House v. the King [1936] HCA 40; 55 CLR 499 at 505;

(b)That finding is a conclusion that "there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons": Wong at 605 [58];

(c)By its nature, the conclusion that a sentence is vitiated by manifest excess "does not admit of lengthy exposition": Hili at 539 [59]. However, it does not follow from this that "manifest error is fundamentally intuitive", it is not: Hili at 539 [60]. "[W]hat reveals manifest excess ... is consideration of all of the matters that are relevant to fixing the sentence": Hili at 539 [60];

(d)Where an offender alleges manifest excess, the Court of Criminal Appeal assumes that no specific error is alleged: Hili at 539 [61]. Accordingly, it is futile, indeed erroneous, to search for one.

(e)Subject to the adoption of the correct, cautious approach, a consideration of past sentences in closely comparable cases may highlight excess: a consideration of sentences which have in fact been imposed in similar cases does not establish a correct range, but may provide "a yardstick against which to examine a proposed sentence": Hili at 537 [54]; Director of Public Prosecutions (Commonwealth) v. De La Rosa [2010] NSWCCA 194; 243 FLR 28 at 98 [303] - [305] per Simpson J;

(f)"The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if a sentencing judge is not also told why those sentences were fixed as they were": Wong at 606 [59] (emphasis in the original). For this reason marked difference from sentences imposed in other cases does not of itself justify appellate intervention: Wong at 604 [58].

Where a judge apparently has a notional starting point before applying discounts, an appeal based on the starting point being too high will not necessarily succeed unless the final sentence is manifestly excessive: Graham [2009] NSWCCA 212. However, where it is not contended that the discount was excessive, the focus should be on the starting point: Xue v Regina [2017] NSWCCA 137 esp at para [4].

Normally events which happened after sentencing are irrelevant to a sentence appeal: Goss v Regina [2009] NSWCCA 190. However if fresh evidence is admitted it may be be taken into account in determining whether or not a sentence is manifestly excessive: Burke [2002] NSWCCA 353 at [91].

It well established that once error has been established, in determining whether some other sentence was warranted and should have been imposed, the court can take into account material which relates to the applicant at the time of the appeal, rather than being restricted to material available to the sentencing judge: Douar [2005] NSWCCA 455.

It is a good practice in nearly all cases to put on an affidavit by the applicant or his instructing solicitor about the current circumstances of the applicant. However the practice of routinely putting this material before the courts was criticised by Howie J in Bushara [2006] NSWCCA 8.

Appeals based on apparent errors in the transcript of proceedings

Exchanges between counsel and the sentencing judge do not form part of the reasons and it is not safe to assume that an observation passed by a judge in the course of the submissions represents a considered final view of the judge on a matter: Regina v A [2004] NSWCCA 292 at para [12], Regina v Pham [2005] NSWCCA 94 at para [11]. However there are occasions when exchanges between counsel and the bench may elucidate abbreviated statements in the remarks on sentence: Regina v Hughes (2008) 185 A Crim R 155 at para [33].

It is insufficient for a Crown appeal to succeed simply by showing that the Court
of Criminal Appeal would have imposed a more severe sentence: Griffiths v The Queen (1977) 137 CLR 293 at 310. The Crown must establish that the sentence was outside the discretionary
range available to the sentencing judge. The inadequacy must be such that it is indicative
of error or departure from principle:Griffiths v The Queen (1977) 137 CLR 293 at 310. The crucial question is whether the total sentence, not the non-parole period,
is within the range: Burnett (1996) 85 A Crim R 76.

As in sentence appeals by an individual, appeal grounds which assert that the sentencing judge gave too much or insufficient weight to a particular factor have inherent problems because they involve a tacit concession that some weight was given to the factor; it then becomes a question of whether the weight given to the factor was outside the discretionary range: Stephens v Regina [2009] NSWCCA 240 esp at paras [16] to [18], Regina v Baker [2000] NSWCCA 85 esp at para [11], Regina v Majid [2010] NSWCCA 121 esp at para [40].

Generally speaking, if in the original sentence proceedings
the Crown does not submit that a suspended sentence is inappropriate, the Crown will
not be able to so argue successfully on appeal: R v Wilson (1981) 28 SASR 362 at
367-8, approved by the High Court inEverett v The Queen (1994) 181 CLR 295 at 302.

Where the Crown appeals against not the sentence imposed on an offender, but not a co-offender, the court should not allow the Crown appeal if it would create a disparity between the sentences even if the sentence imposed on the co-offender was manifestly inadequate, unless the sentence imposed on the co-offender was so inadequate that it could be described as an affront to the administration of justice: Green and Quinn v The Queen [2011] HCA 49.

An important factor in determining whether or not to exercise the discretion is the
question of whether or not the Crown has allowed the sentencing judge to fall into
error:Everett v The Queen (1994) 181 CLR 295 at 300.

(a) The normal restriction upon appellate review of the
exercise of a discretion, as set out in House v The King (1936) 55 CLR 499,
applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202
CLR 321; with the result that this Court cannot merely substitute its opinion, as
to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent
or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung
v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989)
168 CLR 227 at 234, and unless there is a clear error of principle identified, it
would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle
'for the governance and guidance of courts having the duty of sentencing convicted
persons': per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but
this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency
in sentencing, that is, where the sentence is definitely outside the appropriate
range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong &
Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been
shown, and in deciding whether to exercise that discretion, it should have regard
to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R
242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will
generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards
the lower end of the available range of sentence: Dinsdale v The Queen at
para 62.

When resentencing after the appeal the Court may take into account developments after sentence, such as attending courses, not having committed prison disclipinary offences, being in protection, and attending courses: Ali v Regina [2014] NSWCCA 45. As a result for a sentence appeal it is normally a good idea to have affidavit material filed setting out the applicant/respondent's current situation.

If all the physical elements of an offence have been committed somewhere (whether or not within New South Wales), and there is a 'geographical nexus' between NSW and the offence, the Crimes Act states that NSW courts have jurisdiction: s. 10C Crimes Act. That 'geographical nexus' exists if the offence was wholly or partially committed in NSW, or if the offence has an effect in NSW: s. 10C. If
in dispute the trial proceeds in the usual way and the onus of proof is on the balance
of probabilities: s. 10E.

Not surprisingly, the courts have
jurisdiction over Aboriginals: Jacky (1993) PD [330].

Time and Place

The time when and the place where the offence took place
are not normally elements of the offence, but are particulars. However on the facts
of a particular case, time and place may become essential to the Crown case as in
a situation where the accused can call evidence that he could not have committed
the offence when it was alleged: Hughes [2000] NSWCCA 3, Kennedy
(2000) 118 A Crim R 34.

Where an indictment charges that an offence took place between dates which straddle a change in legislation which has the effect of changing the elements of the offence, it appears that the accused cannot be convicted of either offence: NW v Regina [2014] NSWCCA 217.

Mens Rea and Actus Reus

Lawyers often talk about the need for the prosecution to
establish both the 'mens rea' and the 'actus reus' of an offence. These terms come
from the Latin maxim, 'actus reus non facit reum nisi mens rea', meaning (loosely)
a person does not become guilty of a crime by an act unless he has a guilty mind.

The 'mens rea' is the state of mind required to commit the crime (usually some form
of intention or state of knowledge), and the 'actus reus' is everything else, that
is, the physical acts of the accused required to show that the crime has been committed.

Actus Reus.
Mens rea must exist at the same time as the actus reus. That is, there must be the
intention to commit the crime at the time the crime is committed. However the actus
reus is considered as a whole. Thus if the final act is committed at a time when
the accused believes the victim is already dead, there should still be a conviction:
Thabo Meli v The Queen [1954] 1 All ER 373.

Similarly where a man drives onto another's foot and leaves it there after realising
what he has done he is guilty of an offence: Fagan [1969] 1 QB 439.
Voluntariness.
An unwilled reflex or spasm is not voluntary and will not constitute actus reus.
If a person accidentally pulls the trigger or jabs a knife at a person that will
not excuse the accused. The act of presenting the weapon is the actus reus:Ryan v The Queen (1967) 121 CLR 205, Butcher [1986] VR 43. However
the matter should still be left to the jury: Murray v The Queen (2002) 211 CLR 193. For Commonwealth matters see also the Commonwealth Criminal Code, section
4.2.
Intoxication.
Intoxication is only a defence to offences of specific intent such as murder, and
maliciously inflict gbh with intent: ss. 428A-I Crimes Act, overruling The Queen v O'Connor (1980) 146 CLR 64 and Martin
(1984) 58 ALJR 217. Intoxication is relevant to establish lack of intent for these
offences.
Omissions.
Normally omissions cannot constitute actus reus unless they relate to someone to
whom you have a legal duty (e.g. your children): Russell [1933] VLR 59, Stone and
Dobinson [1977] QB 354.
Automatism.
If an act is not done voluntarily there is no actus reus. Once raised as an issue
with a proper foundation (normally medical evidence) the onus of proof is on the
Crown to show beyond a reasonable doubt that the act was voluntary or the accused
should be acquitted: Hill v Baxter [1958] 1 QB 277, Bratty [1963] AC 486, Falconer v The Queen (1990) 171 CLR 90, 50 A Crim R 245,
Youssef (1990) 50 A Crim R 1.

To constitute automatism, a condition must

be transient;

be caused by physical or psychological trauma which the mind of a normal person would
not be likely to have withstood; and

If the automatism arises from a disease of the mind, the
M'Naghten rules apply (Bratty, Cottle). If both issues are raised both should be
left to the jury: Radford (1985) 20 A Crim R 425. The critical issue is not whether or not the automatism was the result of external stimuli, but whether or not the accused's mind was sound at the time of the offence: Radford v Regina (1985) 42 SASR 266 at 276, Woodbridge v Regina [2010] NSWCCA 185.

What Can Constitute Automatism.
The following states may constitute automatism:

Mens Rea.
In Australia (Parker v The Queen (1963) 111 CLR 610) there
is no presumption that a man intends the natural and probable consequences of his
act as is the case in England (Smith [1961] AC 290 ). The intention must go to every
element of the offence such as knowledge that the victim does not consent in rape:
Morgan [1976] AC 182.
Mental Illness and Intent.
Evidence of mental illness falling short of legal insanity is admissible on the question
of intent: Hawkins v The Queen (1994) 179 CLR 500, 68 ALJR 572, 72 A Crim R 288, Toki [2003] NSWCCA 125.
Type of Intent.
In stealing or fraud cases the jury may be asked to find not only that the person
intended to do the act but that the intention was fraudulent or dishonest: Feely
[1973] QB 530, Glenister [1980] 2 NSWLR 597, Macleod v The Queen (2003) 214 CLR 230.
Presumption of Mens Rea.
There is a strong presumption that in any statutory offence the Crown must prove
intention or knowledge on the part of the accused. The matters to be considered are

the words of the statute

the subject matter of the statute ( the presumption will be stronger in clearly
criminal matters, weaker in matters of grave social evils)

whether or not strict liability will assist enforcement (e.g. can the defendant
do anything to avoid committing the offence)

Criminal Negligence and Recklessness.
To be guilty of a criminal offence where negligence suffices the accused must be
guilty of a very high degree of negligence where the word 'recklessness' is the most
appropriate: DPP v Andrews [1937] AC 576.

In Commonwealth matters, a person is negligent if it is shown that his conduct involved
such a great falling short of the standard of care that a reasonable person would
exercise in the circumstances that the conduct merits criminal punishment: Commonwealth Criminal Code, section
5.5.

In cases other than murder, advertence to the possibility of injury will suffice:
Coleman (1990) 47 A Crim R 306, Stokes and Difford (1990) 51 A Crim R 25, but see
Campbell (1995) 80 A Crim R 461 (Vic CCA). There must be advertence to damage to
the type of thing or person actually damaged: B (1994) PD [21].

In Commonwealth matters it appears that to establish recklessness,
it must be shown that the defendant is aware of a substantial risk that the result
will occur, and that having regard to the circumstances known to the defendant, it
is unjustifiable to take the risk: Commonwealth Criminal Code, section
5.4.

Maliciously

Some offences have as an element of the offence that the
act be done 'maliciously'. There is a rather circular definition of 'maliciously'
in s. 5 Crimes Act, but in effect the
expression means intentionally or recklessly: see Livingstone [2004] NSWCCA 122 at
paras 20-32.

Corporations.
For a corporation to be guilty of a criminal offence there must be proof that the
guilty knowledge was held by the brains of the company: the Board of Directors, the
Managing Director, senior managers, possibly only people mentioned in the Memorandum
and Articles of the Company: Tesco Supermarkets v Nattras [1972] AC 153.

For Commonwealth offences, the physical element of the offence must be committed
by the employee, agent or officer acting within the actual or apparent scope of his
employment, or actual or apparent authority. The mental or fault element must be
attributable to the corporation by express, tacit or implied authorisation or permission
of the corporation. Approval by a 'high corporate officer', and the prevailing corporate
culture, can be taken into account: Commonwealth Criminal Code sections
12.1 to 12.3.

4/. Homicide.

Definition of Murder.
The elements of murder are as follows:

the act or omission of the accused caused the death of
the victim

the act was done with intent to kill
or inflict grievous bodily harm with reckless indifference to human life or or was committed in or before or after a felony punishable
by life

(s. 18 Crimes Act).
Causation
An act is treated as the cause of a death if it is a substantial or significant
cause of the death even if some other cause is operating:Royall v The Queen (1991) 172 CLR 378, Reynolds v Regina [2015] NSWCCA 29. Only
if the original wound is merely a setting in which another cause operates, or if
the second cause is so overwhelming as to make the original wound part of the setting,
can it be said that the death does not flow from the wound. (Smith [1959] 2 QB 35
at 42-3 adopted in Hallet [1969] SASR 141 and Evans and Gardiner [1976] VR 523).
It is sufficient if the acts of the accused accelerate the process of death: Moffatt (2000) 112 A Crim R 201.

In Dixon and Smith (1992) 62 A Crim R 465 a conviction was quashed because the Crown
could not exclude a reasonable inference that the sole cause of death was an underlying
disease.

It is not necessary for the Crown to establish the precise act of the deceased which caused death: Regina v PL [2009] NSWCCA 256 esp at paras [46] to [52]. Thus the Crown can prove death in a circumstantial even where no body is found: see the cases listed in Regina v PL at para [50].
A Life.
Where a child is born alive, but subsequently dies from injuries in the womb, the
perpetrator can be guilty of homicide: AGs Ref (No. 3 of 1996) [1996] 2 All ER 10.
Death.
A person is presumed to have died when there is irreversible cessation of all his
brain functions or the circulation of blood in his body: s. 33 Human Tissue Act 1983. Thus
the person who turns off the life support system has not committed murder: Malcherek
and Steele [1981] 2 All ER 422.
Time.
The prosecution no longer has to prove that death occurred within a year and a day
of the act relied upon to constitute murder: s. 17A Crimes Act.
Mens Rea in Murder.
In a charge of murder any of the following states of mind will suffice to establish
that the mens rea:

Intent to Kill.
If a person commits an act which kills the victim, and when he commits the act he
intends to either kill the victim or cause grievous bodily harm to the victim, he
has the requisite intent for murder.

If there is a continuous stream of events leading to death it is enough if there
is an intention to kill at any stage: Hallett [1969] SASR 141.

If a person intends to kill A but instead accidentally kills bystander B, there is
an intent to kill: Standish (1991) 60 A Crim R 36.
Reckless Indifference to Human Life.
If a person does not intend to kill another but does an act or omission knowing that
that the consequences of the act include the probability of death the mens rea has
been established:The Queen v Crabbe (1985) 156 CLR 464. In NSW
because of the definition of murder in s.18 of the Crimes Act only foresight
of the probability of death is sufficient: Solomon [1980] 1 NSWLR 321.

It is not desirable that the court attempt to further define the terms 'probable'
or 'likely', in particular in terms of more than 50% likely. It is not sufficient
to say that death 'may well happen or could well happen': Annakin (1987) 37 A Crim
R 131. More acceptable are descriptions of the relevant likelihood as a substantial
or real chance, a good chance, something that may well or is likely to happen:Boughey v The Queen (1986) 161 CLR 10 esp at para [24], but see White Eaves
and Parker (1989) 43 A Crim R 283.

In a caswhere recklessness is an issue, it is insufficient fo the triasl judge to read the jury the statutory definition of 'maliciously': Pengilley v Regina [2006] NSWCCA 163 esp at para [41].

The jury should be not be directed in terms of reckless indifference unless it arises
as a practical issue: Tumananko (1992) 64 A Crim R 149.
Wilful Blindness.
The jury should not be directed in terms of wilful blindness although deliberate
abstention from inquiry may be regarded as evidence of actual knowledge:The Queen v Crabbe.
Felony Murder.
Finally, the requisite mens rea for murder may be established by the fact that a
person committed an act resulting in the death of the victim in an attempt to commit,
or during or immediately after the commission of a crime punishable by 25 years imprisonment: s. 18 Crimes Act. For practical
purposes it should be noted that robbery with wounding, and robbery with a dangerous
weapon, but not most other forms of robbery, carry 25 years.

It is not necessary to establish a causal connection between the felony and the death:
Munro: (1981) 4 A Crim R 67.

In a charge like robbery with wounding, by majority the High Court held that it is
not necessary to show that the accused intended to cause the wounding if he did it:Ryan v The Queen (1967) 121 CLR 205. However, it is necessary for the prosecution to establish that the act was voluntary, and that is a question for the jury: Penza and Di Maria [2013] NSWCCA 21 esp at para [167].

For most offences, the maximum penalty for murder is life imprisonment: s. 19A Crimes Act.

However, where the person killed is a police officer executing his or her duty, or as a consequnce of or in retaliation for acting in his or her duty, there is an automatic sentence of life imprisonment, unless theoffencer was under the age of 18 or was suffering from a significant cognitive impairment at the time (s. 19B Crimes Act).
Manslaughter.

The following situations are sufficient to establish manslaughter :

manslaughter by criminal negligence

manslaughter by unlawful and dangerous act

manslaughter by excessive self-defence

manslaughter by omission

It is not necessary for the jury to reach a verdict of guilty
of manslaughter on the same basis of liability: Cramp (1999) 110 A Crim 198.
Criminal Negligence.

In order to establish manslaughter by way of negligence, the prosecution must establish the following:

(1) that the accused had a duty of care to the deceased;

(2) that the accused was negligent in that by the accused’s act, the accused was in breach of that duty of care

(3) that such act of the accused [caused/accelerated] the death of the deceased; and

(4) that such act merited criminal punishment because:

(i) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(ii) involved such a high risk that death or really serious bodily harm would follow; and

(iii) the degree of negligence involved in the conduct is so serious that it should be treated as criminal conduct.

The test an objective
one; it is not necessary for the Crown to show that the accused was aware of the
risk: Nydam [1977] VR 430 and Buttsworth [1983] 1 NSWLR 658, but see Andrews [1937]
AC 576. In Lavender [2004] NSWCCA 120 the NSW CCA held that there is a requirement for the Crown to establish that the accused realised
that there was an appreciable risk of harm. However this approach was rejected by the High Court in Lavender v The Queen (2005) 222 CLR 67. There must be a very high degree of negligence that equates
to recklessness: Andrews, Buttsworth.
Unlawful and Dangerous Act.
In order to establish manslaughter by unlawful and dangerous act it is necessary
to establish:

that a reasonable man in the position of the accused would have realised that he
was exposing others to an appreciable risk of serious injury (Wilson v The Queen (1992) 174 CLR 313, 61 A Crim R 63).
A risk of a minor injury is insufficient: Whittaker (1993) 68 A Crim R 476.

It is then an objective test and does not take into account the idiosyncrasies or
ephemeral emotional condition of the accused: Wills [1983] 2 VR 201. In Lavender [2004] NSWCCA 120 the NSW CCA held that it was necessary for the
Crown to establish that that the accused
realised that he was exposing others to an appreciable risk of serious injury, but this was overturned by the High Court in Lavender v The Queen (2005) 222 CLR 67.

It used to be said that the unlawful and dangerous act had to be directed at the
victim (Dalby [1982] 1 All ER 916) but this no longer appears to be the case: Goodfellow
(1986) 83 Cr App R 23.

In England the House of Lords has held that a person who supplies a drug to a 'fully informed and responsible adult' is not guilty of manslaughter if the second person dies of an overdose: Regina v Kennedy (2007) UK HL 38. It is not clear if this is the law in Australia. In NSW it has been held that the mere offer and supply of a drug, without a relationship of authority (such as between a parent and a child), will no lead to criminal responsibility for the injury or death of the person given the drug: Regina v Wilhelm [2010] NSWSC 334 esp at para [25], and Riley v Regina [2011] NSWCCA 238. The mere supply of a drug to a sane person who decides to use it is not of itself enough to establish liability for manslaughter: Burns v The Queen [2012] HCA 35 esp at paras [76], [106]-[107]. However in a case where the deceased injects a drug in the presence of the accused and subsequently falls ill, and later dies, there may be a breach of the duty of care which could found a conviction for manslaughter: Taktak (1988) 14 NSWLR 226.

The fact that an act is in breach of the Traffic Act does not necessarily make it
unlawful: Pullman (1991) 58 A Crim R 222.

Assault causing death

As from 31 January 2014, there is an offence of 'assault causing death': s. 25A (1)Crimes Act. The elements of the offence are that:

the accused hits the deceased with any part of his body or an object held by him;

the assault is not authorised by law;

the assault causes the death of the deceased

The maximum penalty is 20 years imprisonment.

If the accused is in addition over the age of 18 years and is intoxicated the maximum penalty is 25 years: s. 25A (2) Crimes Act. If it is proved that the accused has a blood alcohol level over 0.15 mg per 100 milliliteres of blood, it is conclusively established that the accused was intoxicated: s. 25A (6). Any head sentence under s. 25A(2) must be at least 8 years, as must be any non-parole period: s. 25B Crimes Act.
Battery Manslaughter
The Victorian doctrine of battery manslaughter (Holzer [1968] VR 481) is no longer
the law: Croft (1981) 3 A Crim R 307,Wilson v The Queen (1992) 174 CLR 313, 66 ALJR 517, (1992) 61 A Crim R 62.

Manslaughter By Excessive Self-Defence

The rule that murder could be reduced to manslaughter on
the basis of excessive self-defence has an unusual history. The doctrine was confirmed
by the High Court in Viro v The Queen (1978) 141 CLR 148.The
High Court subsequently abolished it, largely on the grounds that it was too complicated,
in Zecevic v DPP (Victoria) (1987) 162 CLR 645. However
it has been re-introduced by s. 421 Crimes Act, whichapplies to legal proceedings
(other than committals) which commence after 22 February 2002, regardless of when
the offence was committed: s. 423.

(1) the person uses force involving the intentional or reckless
infliction of death;
(2) the conduct is not a reasonable response in the circumstances as the person perceived
them
(3) but the person believed the conduct was necessary to defend himself/herself or
another person, or to prevent or terminate the unlawful deprivation of his/her liberty
or that of another person

In such a situation the person will be not guilty of murder,
but, unless some other defence is available, will be guilty of manslaughter.

The second element referred to above is necessary because if the conduct was a "reasonable
response in the circumstances as the person perceived them", there would be
a complete defence of self-defence resulting in an acquittal (see s. 418).

In relation to assessing the appellant's belief, there is
no requirement that the belief be reasonable, and it appears that the jury can take
into account the fact that the defendant was effected by alcohol: Conlon (1993) 69
A Crim R 92. Section 428F of the Crimes Act does
not exclude consideration of alcohol because there is no 'reasonable man' test: see Kurtic (1996) 85 A Crim R 57. It
may be possible to take into account delusional beliefs of the defendant: Kurtic (1996) 85 A Crim R 57. See generally the section on Self-Defence in the next chapter.

Manslaughter By Omission.
The criminal law rarely imposes an obligation to do a positive act. Failure to do
an act which results in death may constitute manslaughter in the following situations:

where the victim is a person who the accused has a legal
obligation to care for such as his children: Russell [1933] VLR 59

where the accused assumes a duty of care to the victim and secludes the helpless
person that others can't render aid: Stone and Dobinson [1977] 1 QB 354, Taktak (1988)
14 NSWLR 226.

Manslaughter on Multiple Bases

It is not necessary for a jury to reach a verdict of manslaughter
on the same basis: Cramp (1999) 110 A Crim R 198, Dally (2000) 115 A Crim R 582.When the jury returns a verdict of manslaughter, it normally
should not be asked on what basis: Isaacs (1997) 90 A Crim R 587, overruling Low
(1991) 57 A Crim R 8.
Solicit to Murder.
The offence of solicit to murder is complete once the request to murder is made.
Later withdrawal does not effect liability: Wright (1997) 4 Crim LN [724].
Penalty.
The penalty for murder is life imprisonment. However the judge may impose a lesser
sentence (ss. 19A Crimes Act and s. 21 Crimes (Sentencing Procedure) Act).

The 'standard non-parole period' for murders committed after 2 February 2003 (where
the victim was a police worker, emergency services worker, prison officer, judicial
officer, health worker, teacher, community worker, or other public official, exercising
public or community functions and the offence arose because of the victims occupation)
is 25 years. For other murders committed after 2 February 2003, the standard
non-parole period is 20 years. For attempt murder and conspiracy to murder committed after
2 February 2003, the standard non-parole period is 10 years.

5/. Defences

Leaving Defences to the Jury.
Defences available on the facts must be left to the jury even if the defence opposes
this: Ward (1989) 42 A Crim R 56. This does not apply in non-jury trials: Ion (1996)
89 A Crim R 81.
(a) autrefois acquit and convict
Autrefois Acquit.
Generally, if an accused has been already been convicted of an offence, or acquitted of an offence,
he cannot again be convicted of the same offence arising from exactly the same circumstances.
The judge has a discretion to stay a second set of proceedings arising out of the
same or substantially the same circumstances unless the prosecution establishes that
because of special circumstances there should not be a stay: Connelly [1964] AC 1254,
Beedie [1997] 2 Cr App R 167, The Queen v Carroll (2002) 213 CLR 635.

However, exceptions have been created to this rule by statute. On application by the DPP, the Court of Criminal Appeal may order that a person who has been acquitted be retried for an offence carrying a maximum penalty of life, if there is fresh and compelling evidence of the guilt of the accused, and if it is in the interests of justice for the order to be made: s. 100 Crimes (Appeal and Review) Act. Evidence is 'compelling' if it is reliable, substantial, and highly probative in the case against the accused: s. 102 Crimes (Appeal and Review) Act.

On application by the DPP, the Court of Criminal Appeal may order that a person who has been acquitted be retried for an offence carrying 15 years or more gaol as a maximum penalty, if someone has been convicted of an administration of justice offence relating to the earlier trial (for example, perjury), and if it is more likely than not that, but for the commission of the administration of justice offence, the accused would have been convicted: s. 101 Crimes (Appeal and Review) Act.

Autrefois convict

Autrefois convict does not apply where there are convictions for two different offences
constituted by the same act:Pearce v The Queen (1998) 194 CLR 610. However, in a situation where an accused is charged with an offence, and is acquitted, and is later charged with a second offence arising out of the same circumstances, autrefois acquit may apply if either all the elements of the first offence are contained within the second offence, or vice versa: Island Maritime v Filipowski (2006) 228 ALR 1 esp at paras [40] (per Gummow and Hayne JJ) and [91] (per Kirby J).

By analogy with autrefois acquit, where a person has been acquitted of an offence
after giving evidence, a charge that the accused committed perjury by asserting his
innocence should be stayed: The Queen v Carroll (2002) 213 CLR 635.
(b) Fitness to be Tried
Onus of Proof.
In state matters, there is no onus of proof, and the burden of proof is on the balance
of probabilities: s. 6 Mental Health (Forensic Provisions) Act.

In Commonwealth matters arguably the NSW onus applies:Kesavarajah v The Queen (1994) 181 CLR 230, 68 ALJR 670, (1994) 74 A Crim R 100. At common law the onus of proof is on the accused if he alleges
that he is unfit to be tried on the balance of probabilities, but on the Crown if
it alleges it: Podola [1960] 1 QB 325.
Fitness to Be Tried.
The accused must understand the following to be fit to be tried:

The relevant
time for the test of fitness is the time of the trial, not the time of the offence:
Dennison (CCA 3/3/88). There must be a report, an affidavit, or submissions raising
suspicions before it is raised as an issue: Coffee (1992) PD [391].

However, the question must be determined by a jury if an election is made by the prosecution, the accused's lawyer, or by the accused (if the court is satisfied that he has sought and received advice on this issue and has understood this advice): s. 21A Mental Health (Forensic Provisions) Act. It has been held that the judge must satisfy himself/herself that the barrister or solicitor appearing for the accused is satisfied that the accused properly understood the nature of the election he/she was making. Failure to make such an inquiry and to make such a finding has been held to be an appellable error: Regina v Minani (2005) 63 NSWLR 490 at paras [16] and [23].

The procedure to be followed if a person is found to be unfit to be tried is extremely
complicated procedure set out in the Mental Health (Forensic Provisions) Act (1990).
If a further determination is made that the person is unlikely to be found unfit
to be tried within 12 months, there can be a 'special hearing' on the basis of the
limited evidence available.

If the person is found guilty on the basis of the limited
evidence available, a limiting term must be set, which is the longest period the
person can be detained as a forensic patient, and which should represent the total
sentence which the court would impose had the person been fit to be tried. A non-parole
period and parole period should not be set: Mitchell (1999) 108 A Crim R 85, Mailes (2004) 62 NSWLR 181 . The court should not give the offender the benefit of any
discount for contrition in this situation: Mitchell (1999) 108 A Crim R 85.

There are no specific provisions for dealing with unfitness to be tried in the Local Court. It has been held that where a defendant in Local Court proceedings is found to be unfit to be tried, he should be discharged: Mantell v Molyneux (2006) 165 A Crim R 83.
(c) Mental Illness
M'Naghten Rules.
It is a defence if it is proved that at the time of commission of the offence the
accused labouring under such a defect of reason from disease of the mind that he
did not know the nature and quality of the act or that he did not know that what
he was doing was wrong: M'Naghten [1843-60] All ER 229, Commonwealth Criminal Code section
7.3. The irresistible impulse doctrine as a separate doctrine has been rejected:
Sodeman v The Queen (1936) 55 CLR 230.

In the opinion of the writer, this defence should only be raised in cases other than murder in the most exceptional circumstances, because of the risk that a resolution under the mental health legislation might lead to a longer period of incarceration than a plea of guilty with a strong case in mitigation.
Disease of the Mind.
The cause of the disease of the mind is irrelevant, as is whether it is temporary
or curable or not: Kemp [1957] 1 QB 399. Mere lack of self-control is insufficient: Regina v Porter (1933) 55 CLR 182. Alcohol withdrawal psychosis is included: Kina (1996) 3
Crim LN 36.
Nature and Quality of the Act.
It may be established that the accused did not understand the physical nature of
the act he was committing, such as thinking he was breaking a twig: Porter.
Or that He Was Doing Wrong.
Wrong means not legally wrong (as in England: Windle (1952) 2 QB 826) but morally
wrong according to the ideas of ordinary men:Stapleton v The Queen (1952) 86 CLR 358. In Regina v Porter (1933) 55 CLR 182 Dixon CJ said 'If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong'.

Directions as to Consequences.
Under s. 37 of the Mental Health (Forensic Provisions) Act the judge must explain the consequences of the possible findings.
This may include explaining to the jury the consequences of finding the accused guilty:
Hilder (1997) 4 Crim LN [751].

Consequences of a finding of not guilty by reason of mental illness

If a person is found not guilty by reason of mental illness the court must generally order that the accused be detained in such manner and in such place as the court deems fit until released by due process of law: s. 39 Mental Health (Forensic Procedures) Act.

The court also has the power to release the accused, either conditionally, but only if the court is satisfied on the balance of probabilities that the safety of the accused or any member of the public will not be seriously endangered by the person's release: s. 39 Mental Health (Forensic Procedures) Act. It is relatively rare for such an order to be made unless the accused has made a full recoverybetween the time of the offence and the hearing.

People found not guilty by reason of mental illness are not given a fixed sentence. They are reviewed every 6 months by the Mental Health Tribunal which can make orders as to the person's continued detention, care or treatment in a mental health facility, prison or other place. The Tribunal may also order the person's release, either conditionally or unconditionally: s. 47 Mental Health (Forensic Procedures) Act. The requirement of approval by the Attorney General has been recently removed.

but not committals.
Developmental Disability.
Where a person is suffering, or was suffering at the time of the offence, from a developmental disability or a mental illness (a
condition treatable but not a 'mentally ill person' under the meaning of the Mental Health Act 2007) and on an
outline of facts it appears appropriate to deal with it under this part, the magistrate
can:

An order discharging the defendant into the care of a responsible person or conditional upon the defendant attending upon a person or place for assessment and treatment must specify the relevant person or place: DPP v Saunders [2017] NSWCCA 760 esp at para [47].

If the offender does not comply with the conditions the magistrate may call on the offender to attend court and be resentenced. This provision is not limited
to unfitness to be tried: Mackie v Hunt (1989) 44 A Crim R 426, Perry v Forbes (Bulletin
66).
Mental Illness.
If it appears to a magistrate that a person is a mentally ill person under the Mental
Health Act 1990 the magistrate can order that the
person be taken to hospital for assessment or care, or discharge the person into the care of a responsible person. If the person is not returned
to court within 6 months the charges are deemed dismissed. The time the person spends
in hospital must be taken into account in determining the penalty: s. 33.
(d) Substantial Impairment by Abnormality of Mind
Substantial Impairment.
S. 23A Crimes Act- Substantial impairment (formerly
diminished responsibility) reduces murder to manslaughter if:

(1)at the time of the acts/omissions causing death the person's
capacity to

understand events

judge whether the person's action were right or wrong or

control himself or herself

was substantially impaired by an abnormality of mind arising
from an underlying condition AND

(2)the impairment was so substantial as to warrant liability
for murder being reduced to manslaughter

'Substantial' means less than total, more than trivial or minimal: Trotter (1993)
68 A Crim R 536.

The onus of proof is on the accused on the balance of probabilities: Elliot and Hitchins
(1983) 9 A Crim R 238. The judge should not comment on the failure of the accused
to give evidence: Bathurst (1968) 1 All ER 1175.
Abnormality of Mind.

Under previous legislation it was held that the abnormality of mind must be so different
from ordinary human beings that a reasonable man would call it 'abnormal': Byrne
(1960) 2 QB 396. Self induced intoxication is to be disregarded: s. 23A(3), Jones (1986) 22 A Crim
R 42. However the jury should not be directed that if the accused had not taken drink/drugs
he/she would not have killed, the defence is not available. If both drugs and the
abnormality substantially impaired the accused's capacity, the defence is still available: Regina v Deitschmann [2003] UKHL 10. Steroid rage does not constitute an abnormality of mind:
De Souza (1997) 95 A Crim R 1.
Aetiology.

The abnormality of mind must arise from an underlying condition,
which is defined as a pre-existing mental or physiological condition, other than
a condition of a transitory kind: s. 23A(8), McGarvie (1986) 5 NSWLR
270.
Medical Evidence.
It is open to the jury to reject medical evidence but only where there is other evidence
throwing doubt upon it: Tumananko (1992) 64 A Crim R 149 at 160.

For offences committed before 16 August 1996, intoxication such that there was no
intention is a defence for all offences including manslaughter (Martin (1984) 58
ALJR 217,O'Connor v The Queen (1980) 146 CLR 64). For
offences committed after 16 August 1996, intoxication is irrelevant for voluntariness,
and only provides a defence in relation to intention when the offence is one of specific
intent, such as murder, and maliciously inflict gbh with intent (s. 428 C-D Crimes Act, Commonwealth Criminal Codesections 4.2 and 8.2).

Murder is an offence of specific intent, regardless of the
legal basis on which it has been found that murder has been committed: Grant (2002) 55 NSWLR 80, 131 A Crim R 510.
(e) self-defence
Self defence.
The defence of self defence has now been codified. For proceedings which commence
after 22 February 2002 (excluding committals) (see s. 423 Crimes Act), the following
applies:

A person carries out conduct in self-defence if and only if
the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the
liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference,
or

(d) to prevent criminal trespass to any land or premises or to remove a person committing
any such criminal trespass,

The defence is not limited to situations where death or serious
bodily injury is threatened: Honeysett (1987) 34 A Crim R 277. Before self-defence
can be left to a jury there must be a threat of immediate harm: PRFN [2000] NSWCCA 230.

The first leg of the test is completely subjective. It is insufficient for the Crown
to prove that the belief of the accused was unreasonable: Katarzynski[2002] NSWSC 613. The second leg of the test is whether the conduct of the
defendant was a reasonable response in the circumstances as he or she perceived them.

As to the first leg of the test, it is not necessary for the accused to give evidence that he had a belief that it was necessary to act in the way that he did in defence of himself or another if there was a basis for that conclusion based on other evidence or an inference from that evidence: Colosimo v DPP [2006] NSWCA 293 esp at [19], Flanagan v Regina [2013] NSWCCA 320 esp at para [86].

As to the second leg, the test relates to whether the defendant's actions were reasonable, not to whether
a reasonable man would have done the same thing: Conlon (1993) 69 A Crim R 92. As
a result s. 428F Crimes Act does not apply,
and the court can take into account characteristics of the defendant such as intoxication
(Conlon (1993) 69 A Crim R 92) and possibly delusional beliefs (Kurtic (1996) 85 A Crim R 57). However
in Katarzynski[2002] NSWSC 613. Howie J said that Conlon no longer applied, and said that intoxication
could not be taken into account. 'Detached reflection cannot be demanded in the presence of an upturned knife': Justice Oliver Wendell Holmes In Brown v The United States, quoted with approval by Dixon J in Howe v The Queen (1958) 100 CLR 448 at para [14].

Once self defence is raised in the evidence, the Crown must
satisfy the court that the defendant was not acting in self-defence beyond reasonable
doubt: s. 419 Crimes Act. Even if self-defence
is raised in the Crown case, the issue may only be determined by the jury: DPP Ref
(No. 1) (1992) 60 A Crim R 43.

Self defence is not excluded because the conduct that the defendant was responding
to was lawful, or because the person carrying out the conduct to which the defendant
responds was not criminally responsible for it: s. 422 Crimes Act, Thomas (1993)
65 A Crim R 269. Thus the defence can be raised even if the alleged victim was lawfully in the execution of his duty in arresting the accused: Crawford v Regina [2008] NSWCCA 166.

Self defence is not available as a defence to murder, when
force is used to protect property only or to prevent trespass: s. 420.

(f) Duress
Duress Generally.

Duress is a defence to most crimes if the actor was acting under the threat of death
or serious bodily harm: Lynch v DPP [1975] AC 653. Once raised, the Crown must exclude
the defence beyond reasonable doubt: Youssef (1990) 50 A Crim R 1.

To convict, the jury must be satisfied that:

there is no reasonable possibility that the accused did
the acts by reason of a threat of death or really serious harm, or

that there is no reasonable possibility that a person of ordinary firmness (of
the age and sex of the accused) would act the way the accused did, or

the accused failed to take advantage of an opportunity which was reasonably open
to him to render it ineffective: Graham [1982] 1 All ER 801, Abusafiah (1991) 56
A Crim R 424.

Abusafiah sets out standard directions. Slightly different standard directions in the Bench Book were approved by the Court of Criminal in Makriynikos [2006] NSWCCA 170 at para [11]. In Victoria the direction is whether or not
a person of reasonable firmness could or might have acted the way the accused did:
Lanciana (1996) 84 Crim R 268.

A crucial question in determining whether or not the accused failed to take advantage of an opportunity to render the threat ineffective was whether or not the accused could have contacted the police: Taiapa v The Queen [2009] HCA 53.

In theory, self-defence may be available to a principal in the second degree who is not present when the offence is committed (for example someone who contracts with another to kill someone) (see Ryan and Coulter v Regina [2013] NSWCCA 175 esp at para [42], but clearly there would be difficulties in succeeding in this defence on a practical level.

In Commonwealth offences, duress will be available if and only if the defendant reasonably
believes that

a threat will be carried out unless an offence is committed

there is no reasonable way the threat can be rendered ineffective,
and

the conduct is a reasonable response to the threat

(Commonwealth Criminal Code section 10.2). It has been held that the objective test takes into account the objective circumstances of the threats not the accused's perceptions of them: Oblach v Regina (2005) 65 NSWLR 75, 158 A Crim R 586 . The defence should be left to the jury if there is some evidence, which taken at its highest would raise the three matters referred to above as a reasonable possibility: Commonwealth Criminal Code section 13.3, Mirzazadeh v Regina [2016] NSWCCA 65 esp at paras [65] to [66].
Duress and Murder.
Formerly duress was a defence available to principals in the second degree for murder
(Lynch v DPP [1975] AC 653) but not to principals in the first degree: McConnell,
McFarland and Holland [1977] 1 NSWLR 714 overruling McCafferty [1974] 1 NSWLR 89.
In England duress is not available to either: Howe [1987] 1 All ER 771, followed
in NSW in Bassett and Steele (1994) PD [181].
(g) necessity
Necessity.
Necessity may be a defence where a person does a criminal act by reason only of his
mind being overborne by threats of death or serious bodily violence, to himself or
another, such that an ordinary person of the like age and sex, would have done the
act: Lawrence [1980] 1 NSWLR 122.

For Commonwealth offences, the defence is only available if

circumstances of sudden or extraordinary exist, and

committing the offence is the only reasonable way to deal
with the emergency, and

The defence of necessity may assist a fireman driving through a red light (Buckoke
v Greater London Council [1971] Ch 655) but not homeless squatters (London Borough
of Southwark v Williams [1971] 2 All ER 175) or murderers: Dudley and Stephens (1884)
14 QBD 273. However it may be a defence to escape: Loughnan [1981] VR 443, but there
will usually need to be evidence that protection was not available: Rogers (1996)
86 A Crim R 542.
Abortion.
In NSW and Victoria an abortion is lawful if the doctor honestly grounds that

it is necessary to preserve the woman from serious danger
to her life or physical or mental health and

in circumstances not out of proportion to the danger to be averted (Davidson [1969]
VR 667)

the act of the accused causing death was in respone to conduct of the deceased towards or affecting the accused;

the conduct of the deceased constituted a serious indictable offence

the conduct of the deceased was such that it could have induced an ordinary person
in the position of the accused to have so far lost self control as to form an intention
to kill or inflict gbh (s. 23(2) Crimes Act).

The defence does not apply if (s. 23( 3)):

the conduct was only a non-violent sexual advance towards the accused; or

the accused incited the violence in order to provide an excuse to use violence against the deceased

The onus of proof is on the Crown to exclude provocation beyond reasonable doubt
once it is raised as an issue by some evidence.

The decision as to whether or not to leave the defence of provocation to the jury

It may be open to a jury to have a reasonable doubt as to whether or not the prosecution has excluded provocation even though on the facts it would be unreasonable to find affirmatively that provocation existed: see Lindsay v The Queen (2015) 89 ALJR 518 esp at para [38].
Model Directions.
Model directions for provocation are found in Starr (NSW SC Hunt J 12/10/94 u/r).
To exclude the defence the Crown must establish beyond reasonable doubt either:

the act of the accused causing death did not result from
a loss of self control on the part of the accused, or

any such loss of self-control had not been caused by conduct of the deceased towards
the accused or

the conduct of the deceased was not such as could have caused an ordinary person
in the position of the accused to have so far lost his self-control as to have formed
an intention to kill or inflict GBH.

The Provocation.
It used to be said that mere words (and in particular a confession of adultery) would
never suffice to provocation ( Holmes [1946] AC 588) but seeParker v The Queen (1963) 111 CLR 610 andMoffa v The Queen (1977) 138 CLR 601. It is not necessary to
show that the words are 'grossly insulting': Lees [1999] NSWCCA 301. The provocation
needn't come shortly before the killing: Chhay (1994) 72 A Crim R 1, s.23(4) Crimes Act.
The Subjective Test.
The words or conduct must be of the deceased in the presence of the accused (Quartly
(1986) 22 A Crim R 25) or possibly a person associated with the accused closely (Tumananko
(1992) 64 A Crim R 149, Hall [2001] NSWCCA 202) but words
or actions not in the presence of the accused may provide a context to otherwise
innocent words by the deceased: Queen v R (1981) 28 SASR 321. However the decision
of Quartly was doubted by the High Court in Davis (1998) 73 ALJR 139.

There must be a loss of self control, not just anger or excitement: Peisley (1990)
54 A Crim R 42.
The Objective Test.
The content and the extent of the provocation must be viewed from the viewpoint of
the accused, including his age, race, sex, physical features (Stingel v The Queen (1990) 171 CLR 312 at 326)
but not exceptional pugnacity or excitability (Camplin (1978) AC 705) and not affected
by liquor: Croft (1981) 1 NSWLR 126. The significance of the deceased's conduct is
to be judged by its significance to the accused, including his personal history and
experiences (including a peculiar sensitivity to homosexual advances):Green v The Queen (1997) 148 ALR 659, (1997) 72 ALJR 19.

The jury must then consider whether or not the provocation so assessed might cause
an ordinary person of the age of the accused to do what he did (Stingel at 331, Baragith (1991)
54 A Crim R 240). The question was not what an ordinary person would have done, but
what the ordinary person could have been induced to to intend:Green v The Queen (1997) 191 CLR 334. The question
of whether having lost self-control the accused was no longer provoked is to be judged
on a subjective basis:Masciantonio v The Queen (1995) 183 CLR 58, 69 ALJR 598, (1995) 80 A Crim R 331.
Ordinary Person.
'Ordinary' person does not mean 'reasonable person' (Stingel at 328) or an average person
(at 331) because the ordinary person is a person whose powers of self-control are
within the limits of what is ordinary for a person of that age.
Law reform.
There are no longer rules that:

there be reasonable proportion, although this is relevant
to the subjective test: Quartly

The test is whether or the Crown has shown that the child knew that the act
would subject him to punishment: Whitty (1993) 66 A Crim R 462. The Crown must have
establish beyond reasonable doubt that the child knew when he/she did the act that
it was 'seriously wrong' or 'gravely wrong' as distinct from mere naughtiness or childish mischief: BP and SW [2006] NSWCCA 172 esp at para [27]. See also RP v Regina [2015] NSWCCA 215 at [123] to [137] and [34] to [38], RP v The Queen (2016) 91 ALJR 248, [2016] HCA 53, esp at para [9].

Assault.
The mens rea for assault is intention to cause apprehension or recklessness. It is
not clear if the foresight of the probability or possibility of required: compare
MacPherson v Brown (1975) 12 SASR 184 and Venna [1975] 3 WLR 737. The actus reus
is that the victim was actually put in fear. It may be necessary to show that a person
of reasonable firmness would be put in fear: Barton v Armstrong [1969] 2 NSWLR 451.
Pointing a toy pistol will suffice: Everingham (1949) 66 WN (NSW) 122.
Mere Words.
Words used over the telephone may constitute assault but there must be a threat of
violence which can be immediately be carried out: Barton v Armstrong [1969] 2 NSWLR
451, Knight (1988) 35 A Crim R 314.
Hostile Intent.
As a general rule it is not necessary to establish a hostile intent. However if there
is a minor infliction of force the existence of a hostile intent may convert it into
an assault:Boughey v The Queen (1986) 161 CLR 10.
Consent.
Consent is a defence to assault where the blow is not struck in anger, but not where
the blows where likely or intended to cause actual bodily harm: Donovan [1934] 2
KB 498, Brown (1992) 2 All ER 552. Playing sport does not involve consent to assaults:
Stanley (1995) PD [120].

'Grievous bodily harm' means bodily harm of a really serious kind: Smith (1960) 3
All ER 161. This may not include disfigurement only: Tranby (1991) 52 A Crim R 228. Where maliciously inflict gbh with intent is charged, there
must be specific intent, not merely recklessness: McKnoulty (1995) PD [18]. Where reckless infliction of grievous bodily harm is charged, the prosecution must prove that the accused foresaw the possibility (as opposed to probability) of grievous bodily harm being inflicted: Aubrey v The Queen [2017] HCA 18 esp at paras [45] to [47].

For the charge of inflicting grievous bodily harm to be made out, it is not necessary for the Crown to establish that the defendant applied force to the complainant causing immediate injury. Thus, for example, causing someone to contract a disease (such as AIDS) can constitute inflicting grievous bodily harm: Regina v Aubrey [2012] NSWCCA 254, Aubrey v The Queen [2017] HCA 18. An undisplaced fracture not requiring ongoing treatment and not causing a permanant injury was held not to constitute 'grievous bodily harm' in Swan v Regina [2016] NSWCCA 79 esp at paras [74] to [78].

The penalties for recklessly inflicting grievous bodily harm is 10 years (s. 35 (2)),
14 years if in company (s. 35 (1)) or with intent to inflict
gbh or resist arrest or prevent the apprehension of any person (s. 33), 25 years.

For offences of inflicting grievous bodily harm with intent (s. 33) committed after 3 February
2003 the 'standard non-parole period' is 7 years.
Reckless Wounding.

For there to be a wounding there must be a breaking or cutting of the 2 layers of
the skin: Smith (1837) 8 Carrington and Payne 173, Shepherd [2003] NSWCCA 351. The two layers of the skin are usually referred to as the dermis and the epidermis.

The mens rea (or mental element) for the offence of malicious inflict grievous bodily harm or wounding is for the offence is foresight of the possibility of grievous bodily harm. Foresight of some harm is insufficient: Blackwell v Regina (2011) 208 A Crim R 392 esp at para [82]. See also Lawton v Regina [2012] NSWCCA 16.

The
penalty is 7 years (s. 35 (4)), if in company 10 years (s. 35 (3)), or with intent to inflict
gbh or resist arrest or prevent the apprehension of any person (s. 33), 25 years.

For offences of reckless wounding with intent (s. 33) committed after 3 February
2003 the 'standard non-parole period' is 7 years.

Assault Police.

For the offence of assaulting, stalking, or intimidating a police officer, in the
execution of his duty, where no actual bodily harm is inflicted, the maximum penalty
is 5 years (s. 60(1)).

For the offence of assaulting a police officer, while in
the execution of his duty, and inflicting actual bodily harm, the maximum penalty
is 5 years (s. 60(2)). For offences committed
after 3 February 2003, the 'standard non-parole period' is 3 years.

For the offence of maliciously wounding or inflicting grievous bodily harm on a police
officer while in the execution of his duties, the maximum penalty is 12 years (s. 60(3)). For offences committed
after 3 February 2003, the 'standard non-parole period' is 5 years.

Generally these offences only apply if the victim was a police officer while the
officer was in the course of execution of his duty. However, these offences apply
if the officer was not on duty, but the assault was committed in consequence of or
in retaliation for actions of the police officer in the execution of his/her duty,
or because the victim was a police officer (s. 60(4)).The prosecution must generally show that the officer was
acting in the execution of his duties: Donnelly v Jackman (1970) 1 All ER 987, Weekes
v Lahood [CN 129].

In order to prove that a person has 'intimidated' a police
officer it is necessary to show either that the person's conduct has induced fear
in the police officer or effected his conduct: Mellor v Low (2000) 48 NSWLR 517. A person convicted of intimidating a police officer cannot based on the same conduct also be convicted of harassing a police officer because the latter is subsumed in the former: Vella v DPP (2005) 156 A Crim R 113. It has been held that a threat communicated from a defendant communicated to the alleged victim by another police officer can constitute intimidation: DPP v Best [2016] NSWCSC 261 esp at para [50].

The offence of intimidation is an offence of specific intent so a defence of intoxication applies.

Resist or Hinder Police

It is an offence to resist or wilfully obstruct a police officer in the execution of his/her duty: s. 58 Crimes Act. This offence carries a maximum penalty of 5 years imprisonment.

It is an offence to resist or hinder a police officer in the execution of his duty: s. 546C Crimes Act. The offence of resisting or hindering a police officer in the execution of his/her duty carries a penalty of 12 months imprisonment or $1100:

The actus reus of hinder police is any active interference or obstruction which makes the duty of the police officer substantially more difficult of performance: Leonard v Morris (1975) 10 SASR 528 at 531.

It is an offence to possess, use, attempt or threaten to use an offensive weapon with
intent to commit an indictable offence or to prevent or hinder the arrest of any
person or any investigation. The maximum penalty is 12 years or if in company 15
years: s. 33B.

An inoffensive object may become offensive by its use and
intent: Hamilton (1993) 66 A Crim R 575. An equivocal object like a knife is only
an offensive instrument if there is an intention to use it as a weapon: Haigh (1995)
PD [264].

In a very strange decision the Court of Criminal Appeal has held that where an accused drives a vehicle intending to break the grip of a police officer with a grip in him, the car is being used as an 'offensive instrument': Regina v Harkins [2015] NSWCCA 263.

Discharging a Firearm with Intent

It is an offence to discharge or attempt to discharge loaded
arms with intent to inflict grievous bodily harm or with intent to resist or prevent
the lawful arrest of any person. The penalty is 14 years or if in company 20 years
(s. 33A Crimes Act).

It is an offence to shoot at or attempt to discharge loaded
arms at any person with intent to resist the lawful arrest of any person. The penalty
is 25 years: s. 33 Crimes Act. For offences
committed after 3 February 2003 the 'standard non-parole period' is 7 years. To 'shoot at' means to intend to hit a person: Marshall
(1987) 26 A Crim R 259, Abdallah (2005) 157 A Crim R 219 esp at para [56].
Kidnapping.

It is an offence to take or detain a person without the
person's consent for ransom or for any other advantage: s. 86 Crimes Act. It appears that
it is necessary for the prosecution to establish that the accused complainant did
not consent to be taken away or detained, and that the accused did not believe that
she was willing or consenting: DMC (2002) 137 A Crim R 246.

If the victim is under 16, the accused is to be treated
as acting without the consent of the child, unless the accused is the parent of the
child, or is acting with the consent of a parent, and is not in contravention of
any order of the court relating to the child: s. 86(5)-(6)

The elements of aggravated detain for advantage are that

the accused detained the victim

the detention was without the victim's consent

the accused did this with the intention of obtaining an advantage

that the accused was in company or actual bodily harm is inflicted on the victim during or immediately before or after the detaining

20 years for the 'aggravated offence' of being in company
or committing the offence when actual bodily harm is inflicted on the victim immediately
before, during or immediately after the commission of the basic offence

25 years for the 'specially aggravated offence' if both
the aggravating factors referred to above are present

Sexual intercourse is defined by statute as including oral
sex, anal sex, insertion of objects, and continuation of any of the above: s. 61H. It doesn't matter how much
of the lips are penetrated: Preval [1984] 3 NSWLR 647. Cunnilingus does not require
proof of penetration: Randall (1991) 53 A Crim R 380.

Consent

A person consents to have sexual intercourse if the person freely and voluntarily agrees to sexual intercourse: s. 61HA (2).

The fact that a person does not offer physical resistance to sexual intercourse does not of itself establish that the person is to be regarded as consenting: s. 61HA (7).

(a) if the person does not have the capacity to consent to the sexual intercourse, (including because of age or cognitive incapacity), or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained (s. 61HA (4)).

The Crimes Act specifically provides that the grounds upon which it may be held that a person does not consent to sexual intercourse include the following:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust (s. 61HA (6)).

Apparent consent induced by a mistake

A person who consents to sexual intercourse with a person who knows that the victim has a mistaken belief as to the identity of the person, the nature of the sexual act involved, or as to whether or not they are married does not consent: s. 61HA (5). A mistake as to the nature of the act induced by fraudulent means is not consent: s. 61HA (5).

Consent Obtained by Threats

Consent obtained by threats or terror, or when the complainant has been unlawfully detained, is not consent: s. 61HA (4).

If a person consents because of intimidatory or other conduct or other threat not involving a threat of force a person consents it can be established that a person does not consent: s. 61HA (6). This provision appears to have overturned Regina v Aiken (2005) 63 NSWLR 719 which held that where the threat was non-violent (such as a threat to report an alleged shop-lifter) it could not be said that subsequent sexual intercourse was non-consensual.

Knowledge of absence of consent

In a prosecution for the offence of sexual intercourse without consent the prosecution must prove that the accused knew that the complainant did not consent.

The prosecution can establish that the accused had knowledge that the complainant did not consent to having sexual intercourse by establishing any of the following:

(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse (s. 61HA (3) )

Recklessness indifference as to the consent of the victim will suffice. Thus where the accused is aware that the victim possibly might not be consenting there is no consent: Zorad [1979] 2 NSWLR 764, Hemsley (1988) 36 A Crim R 334. The test is an entirely subjective one: O'Meagher (1997) 101 A Crim R 196. Where the accused does not consider the issue of consent at all, there is also no consent: Kitchener (1993) 29 NSWLR 696, Tolmie (1995) 84 A Crim R 293. If the accused is aware that there is a possibility that the complainant is not consenting, but goes ahead anyway, he is guilty of sexual intercourse without consent on the basis of recklessness: Banditt v The Queen (2005) 224 CLR 262.

The third leg of the mens rea ('the person has no reasonable grounds for believing...') is a divergence from the common law. At common law, the test of knowledge that the complainant was not consenting was a purely subjective test: see for example DPP v Morgan [1976] AC 192. However the test of having no reasonable grounds to believe would appear to be a more stringent test a test of 'did not reasonably believe'.

In determining whether or not the accused knew that the complainant was consenting, the jury or judge must take into account all the circumstances of the case, including any steps the accused took to ascertain whether or not the complainant was consenting, but not taking into account the effects of self-induced intoxication: s. 61 HA (3). The 'steps' taken to ascertain whether or not the complainant is consenting must involve 'the taking of some positive act', although it need not be a physical one. It would appear to include the accused considering or reasoning in response to things which he or she perceives: Regina v Lazarus [2017] NSWCCA 279 esp at para [147].

It would appear to follow that when two highly intoxicated people have what would otherwise be consensual sexual intercourse, both may theoretically be guilty of sexual intercourse without consent.

Abolition of Immunities.

It is no longer the case that boys under the age of 14 are
presumed to be incapable of sexual intercourse: s. 61S. The immunity of husbands
has also abolished: s. 61T. This abolition was held not to be unconstitutional: The Queen v L (1991) 174 CLR 379, 66 ALJR 36.
Sexual Assault with GBH.
Sexual assault category 1 is inflicting grievous bodily harm on the victim or a third
person present and nearby with intent to have sexual intercourse or threatening to
inflict actual bodily harm on the victim or a person nearby with an offensive weapon
or instrument: s. 61K. If the threat of harm by
means of an offensive instrument is relied on the Crown does not have to prove that
an offensive weapon was produced: Tout (1987) 11 NSWLR 251. The penalty is 20 years.
Aggravated Sexual Assault.
Sexual assault is treated as aggravated if there are any of the following circumstances
of aggravation:

the offender maliciously inflicts actual bodily harm on
the victim or any other person who is present or nearby at the time of, immediately
before or immediately after the sexual assault

the offender threatens the victim or any person present or nearby with an offensive
weapon or instrument

the offender is in company

the victim is under 16

the victim is under the authority of the offender

the victim has a serious physical or intellectual disability

For aggravated sexual assault the maximum penalty is 20 years (s. 61J). For offences committed
after 3 February 2003, the 'standard non-parole period' is 10 years.

As to the meaning of 'in company', it has been held that
there must be such proximity as would enable the inference that the coercive effect
of the group operated, either to embolden or reassure the offender in committing
the crime, or to intimidate the victim into submission: Button and Griffen (2002) 54 NSWLR 455.

'Under the authority of a person' is defined as meaning if a person is under the 'care, or under the supervision or authority', of another person (s. 61H (2)). It has been held that those words are ordinary English words which do not require further explanation: KSC v Regina [2012] NSWCCA 179 esp at para [125]. Acting under authority may includes the employer/employee
relationship: DH (1997) 4 Crim LN [725].

Where the age of the victim is alleged to be an aggravating factor, it is not clear that it must be proved that the accused knew of the complainant's age.

Aggravated Sexual Assault In Company
Aggravated sexual intercourse in company is committed when

the offender has sexual intercourse with another person
knowing that person does not consent to sexual intercourse

the offender is in company of another person or persons

one of the following aggravating circumstances applies:

the offender maliciously inflicts actual bodily harm on
the victim or any other person who is present or nearby at the time of, immediately
before or immediately after the sexual assault OR

the offender threatens the victim or any person present or nearby with an offensive
weapon or instrument at the time of, immediately before or immediately after the
sexual assault OR

the offender deprives the person of his/her liberty for
a period before or after the commission of the offence.

The maximum penalty is life imprisonment: s. 61JA. For offences committed
after 3 February 2003, the 'standard non-parole period' is 15 years.

Sexual Assault (not aggravated)

Sexual Assault is having sexual intercourse with a person without their consent knowing that they are not consenting: s. 61I. See also Morgan v DPP [1976] AC 182, McEwan [1979] 2 NSWLR 926.

The maximum penalty is normally 14 years. For offences committed after 3 February 2003, the 'standard non-parole period' is 7 years.

Indecent Assault.

To be an indecent assault there must be an assault and at
the time of the assault or immediately before or after an act of indecency: s. 61L. The maximum penalty is
normally 5 years. If there are aggravating circumstances the penalty is 7
years: s. 61M(1). For offences committed
after 3 February 2003, the 'standard non-parole period' is 5 years. However if the victim is under 16, the maximum penalty is
10 years: s. 61M (2). The 'standard non-parole period' is 8 years.

Where the victim is over the age of consent, the Crown must prove that the accused
was aware that the complainant did not consent or the accused was reckless as to
consent: Bonora (1994) 35 NSWLR 74, Kuckailis [2001] NSWCCA 333.

The assault can be a non-hostile touching. If there is no touching, the action of
the accused must cause a reasonable apprehension of physical violence: Fitzgerald
v Kennard (1995) 84 A Crim R 333.

The test of indecency is whether right minded persons would consider the act to be
contrary to community standards of decency: Harkin, McIntosh (1994) PD [390]. Where
the part of the body that has been touched has no sexual connotation (not genitalia
or breasts) there must be evidence of an indecent intention: Harkin (1989) 38 A Crim
R 296.
Act of Indecency.

The maximum penalty for act of indecency is 18 months if
the victim is 16 or over, and 2 years if the victim is under 16: s. 61N. An act of indecency does
not include indecent assault or sexual assault:Saraswati v The Queen (1991) 172 CLR 1, 54 A Crim R 183.
A charge alleging that the accused did an act of indecency 'with or towards' the
complainant was held bad for duplicity: Orsos (1997) 95 A Crim R 457. In determining whether or not the act is 'indecent', the context and in particular the intention of the accused can be taken into account: DPP v Eades [2009] NSWSC 1352.

Sexual Intercourse with Minors
A person who has sexual intercourse with a child under 10 is liable for life imprisonment (s. 66A). For offences committed
after 3 February 2003, the 'standard non-parole period' is 15 years.

A person who has sexual intercourse with a child between 10 and 14 is liable for
16 years imprisonment (s. 66C (1)). However if the offence
is committed in circumstances of aggravation (including being under authority), the
penalty is 20 years (s. 66C (2)).

A person who has sexual intercourse with a child between the age of 14 and 16 is
liable to a penalty of 10 years (s. 66C (3)). If the offence is committed
in circumstances of aggravation, the penalty is 12 years (s. 66C (4)).

'Circumstances of aggravation' are as discussed under 'Aggravated Sexual Assault'
discussed above (with the omission of being under the age of 16, and the addition
of taking advantage of the victim being under the influence of alcohol or drugs).

Where a person has a sexual intercourse with a child between 16 and 17 and under
his/her 'special care', the person is liable to 8 years imprisonment. If the child
is between the age of 17 and 18, the maximum penalty is 4 years (s. 73 Crimes Act). A person is in
a relationship of 'special care' with a person if he/she is the person's step-parent,
guardian, foster parent, teacher, coach, prison officer or health professional of
the child (s. 73 Crimes Act). The 'special care' relationship must exist at the time of the alleged offences; thus, a teacher who had taught a complainant some time before tha alleged offences will not be guilty of this offence even if he is still a teacher at the complainant's school when the sexual intercourse takes place: Regina v PJ [2017] NSWCCA 290 esp at para [39].

The former statutory defence of mistake
as to age when a child is between the ages of 14 and 16 (s. 77) was abolished. However the High Court held in CTM v Regina [2008] HCA 25 that the defence of honest and reasonable mistake about the age of the complainant was still available as a defence.

Persistent Sexual Abuse

Where a person commits a sexual offence on 3 occasions with the one child on separate days, the offender is guilty of an offence under s. 66EA Crimes Act, which carries 25 years.

Incest
Having carnal knowledge with a parent, grandparent, sibling child or grandchild is
incest. The penalty is 8 years (s. 78A). The prosecution must be
sanctioned by the Attorney General (s. 78F).
Homosexual Intercourse
For most purposes, in 2003 homosexual intercourse was put in the same legal position
as heterosexual intercourse. Homosexual intercourse between adults is not illegal
in NSW.

For offences involving sexual intercourse with males under 16, see 'Sexual Intercourse with Minors' above.

'Child abuse material' is defined in s. 91FB as material that depicts or describes in a way that a reasonable person would regard as offensive:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child.

'Private parts' of a person are defined to be the genitalia, or anus of a person, or the breasts of a female person (s. 91FB (4). The term 'breasts of a female person' has been held not to include the chest of a pre-pubescent girl: Turner v Regina [2017] NSWCCA 304 esp at para [59].

The matters which are to be taken into account in determining whether or not a rasonable person would regard the material as offensive include (s. 91FB (2)):

(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and

(b) the literary, artistic or educational merit (if any) of the material, and

(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and

(d) the general character of the material (including whether it is of a medical, legal or scientific character).

It has been held that where material was found on an accused's hard drive which had been deleted but could still be retrieved, the Crown could not without more establish that the accused knew that the material was in his possession and the appeal had to be quashed: Clark v Regina (2008) 185 A Crim R 1 .

Offences which straddle a date where the maximum penalty was increased

Where the allegaton is that an offence occurred sometime during a particular period, and during that time the maximum penalty was increased, and the prosecution cannot prove whether the offence occurred before or after the increase in the maximum penalty, the offender is to be sentenced according to the lower maximum penalty: Regina v MAJW (2007) 171 A Crim R 407.

Lack of or Delay in Complaint.

Where it is suggested that the victim delayed complaining
or did not complain the judge must tell the jury that a delay in or absence of complaint
does not necessarily mean that the allegation is false, and that there may be very
good reasons why a victim might so act: s. 294 Criminal Procedure Act. The
judge should not identify possible but unexpressed reasons why no complaint had been
made: Williams (1999) 104 A Crim R 260.

(2) the accused has suffered a significant forensic disadvantage caused by the delay, other than the mere passage of time (s. 294 ).

Judges should also tell the jury the delay in complaint makes it difficult for the
accused to defend himself, referring to any specific difficulties: Harvey, Johnston (1998) 45 NSWLR 362. The
direction should refer to the fact that (1) the delay made it harder for the accused
to defend the Crown case, referring to specific difficulties in the case, and (2)
as a result there was a need to consider the Crown case with additional care or caution: Johnston. For a detailed summary of the necessary directions on delay
in complaint, see Chapter 16 in the Evidence Section.

Victims of Sexual Offences.

There is no longer a rule that the evidence of victims of sexual assault and indecent assault must be corroborated.

If the sole witness corroborating the Crown case is the complainant a traditional direction is that the jury should consider the evidence of the complainant with great care (Murray (1987) 11 NSWLR 12). The Murray direction should still be given after the Evidence Act: Vawdrey (1998) 100 A Crim R 488.

Under s. 294AA of the Criminal Procedure Act a judge is prohibited from warning a jury that complainants as a class are unreliable, and from warning a jury of the danger of convicting on the uncorroborated evidence of a complainant. Although this provision appears to have been intended to do away with the Murray direction, arguably it has not done so.

Victims of Sexual Assault: Delay in Complaint

At common law where there was a lengthy delay in complaint it was necessary to direct the jury that it would be dangerous to convict unless the jury having scrutinised the evidence with great care was satisfied of its truth and accuracy. This direction was called the 'Longman' direction:Longman v The Queen (1989) 168 CLR 179, 43 A Crim R 463 at 471.

However the issues of when the direction is required, and the content of the direction, have been modified by statute. The direction is only to be given if there is sufficient evidence to justify such a warning (s. 165B Evidence Act). If a judge in a sexual assault trial is satisfied that

(a) there is a delay in complaint and

(b) the person on trial has suffered a significant forensic disadvantage because of the delay

the judge may inform the jury (if one of the parties requests) the nature of the disadvantage and the need to take that disadvantage into account in determining whether or not to accept the evidence (s. 165B Evidence Act).

As to what is a 'significant' delay' the cases on the meaning of a long delay will be of assistance. InLongman the delay was 20 years. In Doggett v The Queen (2001) 208 CLR 343 the High Court said that there should have been a Longman direction in a case where there was a delay of 12 years. However in Dyers v The Queen (2002) 210 CLR 285 it seems 3 High Court judges (Kirby at para [58], McHugh at [47] and Callinan at [128] to [131]) did not think that there had to be a Longman direction in a case where there was a delay of 5 years. In WSP [2005] NSWCCA 427 it was suggested it may not be necessary to warn the jury that it may be dangerous to convict on that evidence if the delay is not 20 years but for example is 4 years (at para [179]). At the other end of the spectrum of delay, in a case where there was a delay of complaint of about 6 months, it was held that there was no need to give a Longman direction: MDB [2005] NSWCCA 354.

The direction is only to be given if the judge is satisfied that the accused has suffered a significant forensic disadvantage caused by the delay: s. 165B (2) Evidence Act. The death of or inability to find potential witnesses and evidence are given as examples in a non-exhaustive list (s. 165B (7) ). The mere passage of time is not of itself to be regarded as a forensic disadvantage: s. 165B (6). This overturns the common law position, in which it was presumed that the accused had sufferred a detriment, even though no specific detriment could be identified: BWT (2002) 54 NSWLR 241, 129 A Crim R 153 especially at paras [13] to [14].

As discussed immediately above, at common law the 'Longman' direction was that where there was a lengthy delay in complaint it was necessary to direct the jury that it would be dangerous to convict unless the jury having scrutinised the evidence with great care was satisfied of its truth and accuracy:Longman v The Queen (1989) 168 CLR 179, 43 A Crim R 463 at 471.

Section 165B (4) of the Evidence Act prohibits a direction that it would be dangerous or unsafe to convict the accused solely because of delay in complaint or the forensic disadvantages suffered as a result of the delay.

If the judge on application of any party is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury:

It may be that the directions should still include a direction to scrutinise the evidence of the complainant with great care. It was assumed that such a direction should be given in TJ v Regina [2009] NSWCCA 257.

If a Longman direction is given, the direction should not refer to difficulties suffered by both the Crown and the accused because of the delay. It should only refer to difficulties suffered by the accused: Folli [2001] NSWCCA 531 esp at para [22], Erohin [2006] NSWCCA 102 at para [86].

Multiple Victims and Multiple Counts
Where there are a number of counts, the jury is usually directed that each count
must be considered separately. However where there is no evidence in the Crown case
apart from the complainant's evidence, the jury should generally be told that if
they find the accused is not guilty on one count, that must be taken into account
in assessing the truthfulness of the complainant generally: Markuleski (2001) 52 NSWLR 82.
There is no universal requirement that the jury be given a 'propensity direction';
that is, a direction that if the jury found the accused guilty of one of the offences
charged, it could not use that finding to reason that he was the sort of person likely
to commit the another of the offences:KRM v The Queen (2001) 75 ALJR 550.

where the evidence is of the complainant's sexual experience/inexperience,
or sexual activity/events at about the time of the offence and those events are a connected set of circumstances ( s. 293 (4) (a) )

where it is evidence of the relationship between the parties (s. 293 (4)(b))

in a case where the accused does not concede that sexual intercourse took place,
and the evidence is relevant to whether where the presence of injury, semen, disease
or pregnancy is attributable to the accused (s. s. 293 (4) (c))

if the evidence is relevant to whether at the time of the
alleged sexual intercourse the accused or the complainant had a disease (s. 293 (4)
(d))

if the evidence is relevant to whether the allegation of
sexual assault was first made following a realization or discovery of disease or
pregnancy of the complainant (s. 293 (4) (e)).

if the prosecution case has disclosed or implied that
the complainant has sexual experience or a lack of sexual experience of a general
or specified nature, or had taken part in or not taken part in sexual activity of
a general or specified nature (s. s. 293 (6)).

Generally evidence of the complainant consenting to sexual activity with a person other than the accused will not be admissible: Regina v Burton [2014] NSWCCA 335 esp at para [70]. However evidence of a 'set of circumstances' ( s. 293 (4) (a))
may include intercourse with another person an hour later: Morgan (1993) 67 A Crim
R 526. 'Relationship' in this context (s. 293 (4) (b) ) has been
held to mean 'an emotional connection between people sometimes involving sexual relations':
White (1989) 18 NSWLR 332. It may include intercourse between the parties a few weeks
after the incident: Regina v Warner (NSWCCA unreported 7/5/1997), Taylor v Regina [2009] NSWCCA 180.

The reference in s. 293 (4) (c) to 'injury, disease' is
not limited to injury to genitalia, and this provision should be construed broadly-
see Dimian (1995) 83 A Crim R 358. If the defence case is that sexual intercourse occured but it was consensual, the exception under s. 294 (4) (c) does not apply: Taleb v Regina [2015] NSWCCA 105 esp at para [102].

The prosecution has not 'disclosed' the complainant's sexual history or lack of sexual history merely by the prosecution serving material on the accused recording that the complainant was a virgin: Spratt v DPP [2010] NSWSC 355.

The applicant should set out in writing the areas he wishes to question on, but not
the specific questions: Dimian (1995) 83 A Crim R 358, Taylor v Regina [2009] NSWCCA 180 esp at paras [45] to [48].

If the accused is charged with one prescribed sexual offence and one offence which
is not a prescribed sexual offence, s. 293 Criminal Procedure Act still
appears to apply: ARS (CCA unreported 25/9/97).

A complainant in a prescribed sexual offence is entitled to give evidence by closed circuit television or shielded from the accused and from anyone else in the court room by use of screens: s. 294B Criminal Procedure Act.

Cross-Examination of a Complainant by an Unrepresented
AccusedSection 294A Criminal Procedure Act prohibits an unrepresented accused from cross-examining a complainant in a sexual
offence. However, in such a court situation, the court must appoint someone to ask
the complainant the questions that the unrepresented person requests. A challenge
to the constitutional validity of this legislation was rejected in MSK and MAK (2004) 61 NSWLR 204, 148 A Crim R 453.

The representative of the accused should be present for the evidence in chief of the complainant and the proposed questions of the complainant should not have to be submitted to the judge before the evidence in chief of the complainant is given: Clark v Regina [2008] NSWCCA 122.

Medical Evidence that it is probable that the complainant had been sexually assaulted

A doctor's opinion that, in light of the complainant's history and the doctor's examination, it was probable that the complainant had been sexually assaulted, is inadmissible: Davis [2004] NSWCCA 298 esp at paras [37] to [38].

Time on the Indictment

Late amendment of the date on the indictment can be fatal
for the Crown case: Westerman (1991) 55 A Crim R 353. The date of the offence is
not normally an element of the offence, but is a matter of particulars: VHP (NSW
CCA 7/7/97), Kennedy (2000) 118 A Crim R 34.
However, in a particular case, the date of the offence can achieve importance by
indicating that the offence is not maintainable at law or is bad for duplicity: Greenaway (2001) 118 A Crim R 299.

7/. Drug
and People Smuggling Offences

Commonwealth Offences.
Under the Commonwealth Criminal Code it is an offence to

import or export a border controlled drug or plants (ss. 307.1-4)

have in possession a bordered controlled drug or plants which was illegally imported (ss. 307.5- 307.7)

have in possession bordered controlled drug or plants which are reasonably suspected of being illegally imported (ss. 307.8-307.10)

Elements of Importing the Commercial Quantity of a Border Controlled Drug/Plants

For the Crown to establish that an accused is guilty of the offence of importing the commercial quantity of a border controlled drug or plants, the Crown must establish:

the person imported a substance

the substance was a border controlled drug or plant

the amount imported was the commercial quantity.

Similarly for the offence of import the marketable quantity.

As to the mens rea for these offences, see below.

Meaning of 'import'

The word 'import' has been interpreted as meaning requiring proof that the border controlled goods arrived in Australia from abroad and were delivered to a point which would result in the goods remaining in Australia. It was held to be necessary that the Crown proves that the accused had the relevant mens rea at the time the goods were imported: Campbell v Regina (2008) 73 NSWLR 272, 188 A Crim R 1 .

Subsequently, s. 300 was amended to include dealing 'with the substance in connection with its importation'. It has been held that 'dealing' includes physical acts such as concealing or transporting the goods, as well as legal processes such as sale: El-Haddad v Regina [2015] NSWCCA 10.

Mens Rea of Importation: Offences Committed after 28 September 2004

For offences committed after 28 September 2004, and for offences allegedly committed before the Code was introduced the following applies.

In a charge of importation there must be proof of intention to import, so there must be knowledge of the existence of the drugs: He Kaw Teh v The Queen (1985) 157 CLR 523. Under the Commonwealth Criminal Code, the fault element for knowledge that the substance imported was a prohibited drug or plant is recklessness. Intention to import narcotics can be inferred from awareness that the thing being imported contains narcotic goods.

(1) The accused is charged with importing a border controlled drug. Importing something into Australia means bringing that thing into Australia.

(2) What is in dispute is whether the accused intended to import the substance and whether he or she knew, or was reckless as to whether, the substance was a border controlled drug.

(3) The accused cannot be convicted of importing a border controlled drug unless it is established beyond reasonable doubt that:

(i) he or she intended to import a substance; and

(ii) he or she knew, or was reckless as to whether, the substance was a border controlled drug.

(4) Each of those mental elements must be considered separately.

(5) The accused cannot be regarded as having intended to do something unless it is established beyond reasonable doubt that he or she meant to do that thing.

(6) To decide whether the accused meant to bring the substance into Australia, it is permissible to draw an inference as to the accused's state of mind at the time of bringing the substance into Australia.

(7) In order to draw an inference of intent, it is necessary to be satisfied beyond reasonable doubt of the facts and circumstances from which the inference of intent is drawn and that the inference of intent is the only reasonable inference open to be drawn from those facts and circumstances.

(8) Where, as here, the accused brought into Australia a case, object or other thing ("the container") which has a substance in it, and it is open to infer that the accused meant to bring the container into Australia, it is open to infer that the accused meant to bring the substance into Australia if, at the time of bringing the container into Australia:

(i) the accused knew that the substance was in the container; or

(ii) the accused knew or believed there was a real or significant chance that the substance was in the container.

(9) It is not necessary that the accused knew or had a belief as to where, or in what fashion, or in what form, the substance existed or was secreted in the container. It is enough if the accused knew or believed there was a real or significant chance that the substance was somehow, somewhere, in some form within the container.

(10) It must be stressed once again, however, that it is not permissible to draw an inference that the accused meant to bring the substance into Australia unless that is the only inference reasonably open on the established facts and circumstances of the case.

(11) If it is established beyond reasonable doubt that the accused meant to bring the substance into Australia, it will then be necessary to decide whether the accused knew, or was reckless as to whether, the substance was a border controlled drug.

(12) The accused cannot be taken to have been reckless as to whether the substance was a border controlled drug unless it is established beyond reasonable doubt that:

(i) the accused was aware of a substantial risk that the substance was a border controlled drug; and

(ii) having regard to the circumstances which were known to the accused, it was unjustifiable for him or her to take the risk.

Mens Rea of Importation: Offences before 28 September 2004
It has been held that it is a misdirection to tell a jury that awareness that there was a substantial risk that the contained narcotic goods is sufficient to establish intention: Regina v Saengsai-Or (2004) 61 NSWLR 135, 147 A Crim R 172 at para [75]. However, the judge may direct the jury that the intention to import can be established by an inference that the accused was aware of the likelihood that the container narcotic goods: Saengsai-Or (2004) 61 NSWLR 135 at para [74].

Penalties Under the Commonwealth Act.
There are alternative penalties:

where the amount of the drug is the commercial quantity:
life imprisonment (s. 307.1)

where the quantity is the marketable quantity: 25 years imprisonment (s. 307.2)

for importing less than the marketable quantity of a prohibited drug/plant:10 years

where the offender proves that he/she did not intend to sell any of the border controlled drug and did not believe that any of it would be sold: 2 years

Schedule of Penalties for Importing Particular Drugs
Under the Criminal Code, there is a table of penalties for offences under varying according to the type of drug. The complete schedule can be found in schedule 3.
The relevant quantities for commonly imported drugs are set out in this table:

DRUG

TRAFFICKABLE QUANTITY

MARKETABLE QUANTITY

COMMERCIAL QUANTITY

Amphetamine

2 g

250 g

750 g

Cannabis

250 g

25 kg

125 kg

Cannabis Resin

20 g

25 kg

125 kg

Cocaine

2 g

250 g

2 kg

Heroin

2 g

250 g

1.5 kg

LSD

.002 g

.05 g

.002 kg

Ecstasy

.5 g

100 g

.5 kg

Knowingly Concerned in Importation.
To be convicted of 'knowingly concerned' it is necessary to establish proof of some
act or conduct prior to or during the act of importation, some practical connection,
not just mere knowledge or inaction: Tannous (1987) 10 NSWLR 303, Marcell (1993)
PD [88]. There must be knowledge of the essential elements of the principal offence:
Edwards (1992) 62 A Crim R 100. You can be 'knowingly concerned' by conduct after
the importation is complete: Leff (1996) 86 A Crim R 212.

People Smuggling

The Migration Act makes it an offence to organise or facilitate the bringing or coming of a person, or the entry or proposed entry of a person into Australi, where the person is a non-citizen, and the person has no right to come to Australia: s. 233A Migration Act. Aggravated forms of the offence exist where the smuggler exposes the non-citizen to the risk of death or serious harm (s. 233B), or where at least 5 people are being smuggled (s. 233C).

The maximum penalty for an offence under s. 233A is 10 years imprisonment, and the maximum penalty for an offence under s. 233B or s. 233C is 20 years imprisonment. However, where there is an offence under s. 233B there is a mandatory minimum sentence of 8 years with a non-parole period of 5 years, and where there is an offence under s. 233C there is a mandatory minimum sentence of 8 years with a non-parole period of 5 years for a first offence, and a mandatory minimum sentence of 8 years with a non-parole period of 5 years for a subsequent offence: s. 236B.

It is an element of the offence that the accused knew that the island to which the accused was taking the non-citizens was part of Australia: Alomalu v Regina [2012] NSWCCA 225 esp at para [82].
Possession of Minute Amounts.
Possession of minute amounts of a drug does not constitute possession: Williams
v The Queen (1978) 140 CLR 591.
The Physical Aspect of Possession.
The physical aspect of possession is exclusive physical control: DPP v Brooks (1974)
2 WLR 899. Holding for a short time for the purposes of concealment is still possession:
Todd (1977) 6 A Crim R 105.
The Mens Rea of Possession.
It is necessary for the prosecution to prove knowledge of the existence of the drug: He Kaw Teh v The Queen (1985) 157 CLR 523, 59 ALJR 620.
Proof of the belief that the drugs were present will suffice: Kural. If a person forgets that
he has the drugs in his possession he can still be convicted: Martindale [1986] Crim
LJ 737, Kennedy (1998) 100 A Crim R 377. Possession does not require proof that the defendantknew precisely where the item was or that he knows that it is in his bag at the relevant time: DPP v Fairbanks [2012] NSWSC 150.
The Shared House.
Mere knowledge of the existence of the drugs, their location in the premises, and
sanction of them being there does not amount to possession: Hinton (1978) PSR 1749.In a shared house situation the mere finding of the drugs
will not amount to possession unless the possibility of sole possession by others
is excluded: Fillipetti (1984) 13 A Crim R 335, Burns (19/8/88 CCA), Bazley (23/3/89)
and Dib (1991) 52 A Crim R 65.These common law principles now have to be read subject
to the specific statutory provisions relating top 'drug premises' (as to which see
immediately below).

'Drug Premises'

It is an offence to be found on or entering or leaving 'drug
premises'. There is a defence if the accused satisfies the court that he/she had
a lawful purpose or lawful excuse. The maximum penalty for the first offence is a
fine of $550 and 12 months imprisonment, for subsequent offences the maximum penalty
is $5500 and 5 years imprisonment: s. 36X Drug Misuse and Trafficking Act.
Similarly it is an offence for an owner or occupier of premises to knowingly allow
premises to be used as drug premises, penalty $5500 and 12 months for the first offence,
and $55, 000 and 5 years for subsequent offences: s. 36Y DM and T Act.
The same penalties apply for organising or conducting, or assisting in organising
or conducting, drug premises. This offence includes acting as a look-out, door attendant
or guard: s. 36Z DM and T Act.

For all of these offences the prosecution is required to prove beyond reasonable
doubt that the premises are 'drug premises': (s. 36W DM and T Act). That requires the court to be satisfied that at the relevant time the premises were
being used for the manufacture or supply of a prohibited drug: (s. 36W DM and T Act). It is not necessary for the prosecution to prove that the accused had a prohibited
drug in his possession or that there was a prohibited drug in the premises: s. 36V DM and T Act. In order to determine whether the premises are 'drug premises',
the court can take into account:

evidence that a police officer was obstructed from entering
the premises

evidence of security devices to delay police entry

evidence of look outs

evidence of the presence of means of supply or manufacture
of prohibited drugs such as syringes

The Car.
Where drugs are found in a car, a passenger cannot be convicted of possession without
further evidence: Harris [1961] Crim LJ 256, Lester & Byast (1955) 39 Cr App
R 157. Where the owner of a car has the drugs locked in the boot but he does not
have the keys, prima facie he does not have exclusive physical control: Barron v
Valdamis [1978] ACLD 374. Mere possession of the keys to a car does not of itself
prove knowledge of the contents of the car, especially if others have access to the
car: Amanatidis (2001) 125 A Crim R 89. Someone in a car from which drugs are being sold may be
charged with being in drug premises as to which see the paragraph immediately above.

Hidden Drugs.
Where a person hides drugs so effectively he can take it into his custody and others
are unlikely to find them, they are in his possession: Delon (1992) 29 NSWLR 29.
Possession of an Implement.
It is an offence to have in your possession an implement for the administration of
a prohibited drug. There is an exemption for hypodermic syringes: s. 11 Drug Misuse and Trafficking Act.
It is necessary to show that the person possessed the utensils for future use: Erickson
v Pittard [1976] 2 NSWLR 528.
Penalty: $2200 or 2 years
Administration.
It is an offence to administer drugs to your self or to another person: ss. 12 and 13.
Penalty: $2200 or 2 years
Hearsay Admissions.
The courts can take into account street expressions for drugs such as 'grass' (Ringstaad
v Butler [1978] 1 NSWLR 754) but not 'speed' (Woodward v Wallace NSW SC Cantor J
23/4/85). However the admissions only become admissible of what the drugs were if
the maker has personal knowledge or expertise: Ringstaad v Butler, Brady [1980] 7
PSR 2199.
Cultivate.
It is an offence to cultivate indian hemp: s. 23. Watering plants with the intention
of keeping the plants alive is cultivation: Eager v Smith (1988) 38 A Crim R 272.

Where the accused is charged with cultivating a particular quantity of plants (for example the commercial quantity), the Crown must establish that the crop contained the relevant number of plants, not the number of plants which were tendered: Mouroufas v Regina [2007] NSWCCA 58.

A number of separate sites can be the subject of a single charge of supply the commercial
quantity: Regina v Whalen and Willer (2002-3) 56 NSWLR 454.
Actual Supply.
It is an offence to supply or take part in the actual supply of a prohibited drug: s. 25. If the defendant merely asks
someone to obtain a drug and supply it to him he has not caused the person to supply:
Castle v Olen [1985] 3 NSWLR 26. However it seems this can constitute incitement
to supply: Regina v Eade (2002) 131 A Crim R 390.

The relevant intention is an intentional making of an offer with the intention that
it would be regarded by the offeree as genuine, so a 'rip-off' may constitute supply:
Dendic (1987) 34 A Crim R 40, Addison (1993) 70 A Crim R 213. However this does not
mean that the sentencing principles applicable to drug dealers are relevant: Kalpaxis [2001] NSWCCA 119.

Supply includes buying a drug with pooled money and splitting the result: Buckley
[1979] Crim LR 665. Supply includes causing a package to be forwarded to another
person by a mail delivery system, even if the drugs end up being delivered by undercover
police: Pinkstone v The Queen (2004) 219 CLR 444.

Under the extended definition of supply, 'suffering or permitting' a supply is included.
This appears to include a failure of a police officer to intervene knowing that a
supply is likely to occur: Jasper (2003) 139 A Crim R 329.

For offences of supply of the commercial quantity of a drug (not cannabis) committed
after 3 February 2003, the 'standard non-parole period' is 10 years. For the large
commercial quantity, the 'standard non-parole period' is 15 years.
Holding.
Giving drugs to someone to hold for you is not supplying (Maginnis [1987] 2 WLR 765)
nor is the holder giving the drugs back to you: Carey (1990) 50 A Crim R 163, (1991)
55 A Crim R 120, Tuckey (1991) 57 A Crim R 468, Pelham (1995) 82 A Crim R 455. Where
the defence is that the defendant is simply holding the drugs for someone else, the
jury should be specifically directed that this is a defence at law: Regina v Frazer (2002) 128 A Crim R 89. However holding the goods of the true owner as leverage
to get money from him is supply, if the true owner has not given them to you: Regina v Asim (1997) 92 A Crim R 97. Holding drugs for someone else, which you then give to someone else, is supply: Blair (2005) 152 A Crim R 462.
Possession for the Purpose of Supply.
You can't be convicted both of possession and supply in the sense of possession for
the purpose of supply: Dodd and Dodd (1991) 56 A Crim R 451.
Deemed Supply.
A person who has in his possession the trafficable quantity of a drug is deemed to
have it in possession for the purpose of supply unless he proves the contrary: s. 29. The burden of proof is on
the balance of probabilities: R v R (no. 2) (1990) 19 NSWLR 573. Possession for the
purpose of disposing of the substance is not possession for the purpose of supply:
Orban (CCA 5/7/84 ). The provision only applies to someone actually in possession
of the drug, not to someone attempting to or conspiring to possess:Krakouer v The Queen (1998) 194 CLR 202.

Police can give evidence that conversations could be referring to drugs, but not
that they do so refer: David (1995) [PD] 351.
Aid and Abet Supply.
The deeming provision does not apply to aid and abet supply. There must be proof
of actual knowledge: Davis v The Queen (1991) 66 ALJR 22.

Supply on An Ongoing Basis

A person who supplies on 3 or more occasions within 30 days
a prohibited drug (other than cannabis) for financial or material reward is guilty
of supplying drugs on an ongoing basis and faces a penalty of 20 years: s. 25A Drug Misuse and Trafficking Act. It is necessary for the prosecution to establish that the
accused himself receives the financial or material reward, not simply financial or
material reward to another person: Jackson [2004] NSWCCA 110, White v Regina [2014] NSWCCA 329.

Deemed Drugs.
When a substance is represented as being as drug for the purpose of supply it will
be deemed to be a drug: s. 40. There must be an actual
substance represented as the drug for the section to operate: Miller v Page 6 PSR
2854.
Quantity of Drugs.
Where the accused is charged with eg cultivating or supplying more than a specified
quantity of the drug (eg the commercial quantity), the Crown must prove that the
accused knew that the relevant amount of drugs was involved: CWW (1993) 70 A Crim
R 517. It appears that it is sufficient if the jury is aware that the accused believed
that there was a significant or real chance that the drugs contained the commercial
quantity: Lau (1998) 105 A Crim R 167.

Under state legislation a reference to a drug is deemed to include an 'admixture',
so the impure quantity is what is relevant to the quantity of the drugs: s. 4 DMT Act. This does not apply
if say the heroin is not mixed in with other white powder (Regina v Asim (1997) 92 A Crim R 97 at
100). It does apply to cardboard impregnated with LSD: Finch v Regina [2016] NSWCCA 133 esp at para [134].
Analysts Certificate.
An analysts certificate is prima facie evidence of the quantity of the drug: s.43. The drug must be traced from
hand to hand from the police who seize the drug to the analyst for the certificate
to be admissible: Young v Commissioner of Railways [1962] SR NSW 647, Barron v Valdamis
[1978] ACLD 374. It may be a matter of fact for the jury: Reynolds (1992) PD [292].
The onus of proving that the resin has been extracted is on the defence: s. 40A.
Conspiracy to Supply.
It is actual supply rather than conspiracy to supply for A and B to agree for A to
supply B (Chow 1987 11 NSWLR 561), or A and B to supply C (Trudgeon (1988) 39 A Crim
R 252).

It has been held that it is necessary for the Crown to prove that the accused knew that what was being produced was a prohibited drug, not merely a precursor: Siafakis v Regina [2016] NSWCCA 100 esp at para [38].

If under this amount, can be dealt with summarily without consent
of accused.
Maximum penalty: 2 years, $5500.

If the person being supplied to is under 16 the penalty is increased to 2 years 6
months.

Traffickable Quantity.

If there is any more than
the traffickable quantity, the deemed supply provisions apply (s. 29). The maximum penalty in
the Local Court is $11,000 and 2 years.

Indictable Quantity, under Commercial Quantity:

If
under this amount, can be dealt with in the Local Court unless the prosecution or
defence elects otherwise.
Maximum penalty summarily: 2 years, $11 000. If the person being supplied to is under
16 the penalty is increased to 2 years 6 months.

If the person being supplied to is under 16 the penalty
is increased to 25 years. If there are 3 supplies of any drug other than cannabis
in a period of less than 30 days, s. 25A applies, and the maximum penalty becomes
20 years.

More Than Commercial Quantity
Cannabis Plant or Leaf: $385 000, 15 years
Otherwise: $385 000, 20 years.
If the person being supplied to is under 16 the penalty is increased by a fifth.

Over Large Commercial Quantity
Cannabis Plant or Leaf: $550 000, 20 years
Otherwise: $550 000, life.
If the person being supplied to is under 16 the penalty is increased by a fifth.

8/.
Public Order Offences.

(a) general
Public Place.
Public place is defined in the Summary Offences Act as any place
or part of premises open to the public or used by the public whether or not it is
normally so used, whether or not it is open only to a limited class of persons. It
does not include a school: s. 3. It does not exclude private
property or property where the defendant has no right to go: Camp [1975] 1 NSWLR
452.
Drunkenness.
Drunkenness is no longer a crime. Under s. 206 Law Enforcement (Powers and Responsibilities) Act a person who is found intoxicated in a public place and either behaving in a disorderly
manner or in a way likely to cause injury to person or property can be detained until he sobers up.
Consorting.
It is still an offence to habitually consort with people convicted of indictable
offences after being given an official warning : s. 93X Crimes Act.
Loitering with Intent.
It is an offence to be found near any premises or in a public place with intent to
commit an indictable offence: s. 546B. It is not necessary to
prove an intention to commit any particular felony: Harrison v Hegarty [1975] VR
362.

Police Powers to Move People on
If a police officer believes on reasonable grounds that a person's behaviour

is obstructing people or traffic

constitutes harassment or intimidation

is likely to causing or likely to cause fear to other people,
so long as the conduct would be such as to cause fear to a person of reasonable firmness

It is an offence to have in your custody a knife in a public
place or school without reasonable excuse, proof of which is on the defendant. The
penalty is 5 penalty units for a first offence, and for subsequent offences 20 penalty
units and/or 2 years imprisonment (s. 11C Summary Offences Act). Self
defence is specifically defined not to be a reasonable excuse.
(b) offensive conduct
Offensive Language or Conduct.
It is an offence to engage in offensive conduct in, near or within view of a public
place or school, penalty $600 or 3 months gaol: s. 4 . Offensive language now carries
a maximum penalty of 6 penalty units: 4A Summary Offences Act. The word
'fuck' is not of itself necessarily offensive: Hortin v Rowbottom (1993) 68 A Crim
R 381. Urinating in the street can constitute offensive conduct: State of NSW v Beck [2013] NSWCA 437 at para [170].
Intention.
Offensive conduct must involve an intention to an offend, which seems to mean doing
an act with knowledge that the activity could at least offend: Pregelj and Wurramurra
v Manison (1988) 31 A Crim R 383, Stone v Ford (1992) 65 A Crim R 459. Thus intoxication
is a defence to offensive conduct: Jeffs v Graham (1987) 8 NSWLR 292.
Offensive.
Offensive seems to mean something that would wound the feelings or arouse disgust
or outrage in a reasonable man: Ball v McIntyre (1966) 9 FLR 237, Smith [1974] 2
NSWLR 586. The reasonable man is reasonably tolerant and contemporaneous: Spence
v Loguch (CN [103]).
Evidence of By-Stander Police Officers.
The evidence of bystanders that they were offended is relevant but not necessary,
although it getting a conviction without it may be difficult. The fact that the bystanders
were police officers only goes to weight: Connolly v Willis [1984] 1 NSWLR 378. There
is no need to prove any person actually heard it: Stutsel v Reid (1991) 20 NSWLR
661.
Reasonable Excuse.
There is a statutory defence of having a reasonable excuse. Examples may be a belief
that a beach is in fact a nude beach ( Featherstone v Fraser (1983) PSR 2962) or
a cry after a heavy implement has fallen on your foot: Karpik v Zisis (1979) 5 PSR
2055.
(c) wilful and obscene exposure
Wilful and Obscene Exposure.
Under s. 5 of the Summary Offences Act wilful and obscene exposure of your person in or within view of a public place or
school is an offence punishable by $1000 fine or six months gaol. Person seems to
mean genitals: Evans v Ewels [1972] 2 All ER 22, Eyles (NSW CCA 1/10/97). There may
be a defence of honest and reasonable mistake: Willy Wampfler (1987) 11 NSWLR 541.
Obscene.
Obscene has a narrower definition than indecent although they are related. The circumstances
are relevant as is the reaction of the average man: Moloney v Mercer [1971] 2 NSWLR
208.
(d) public assemblies
Riot.
It is an offence under s. 93B Crimes Act if

12 or more persons present together, whether or not at
the same time

use or threaten to use of unlawful violence, whether to persons or property, including any violent
conduct such as throwing missiles that fall short (for a common purpose- can be inferred from conduct)

such that would cause a reasonable person to fear for his personal safety (no such
person need actually be present)

the accused used unlawful violence

need not be in public

Maximum penalty: 15 years

It appears that the prosecution must prove that each accused used unlawful violence, and that the threat of violence is insufficient: Regina v Tyler (1993) 96 Cr App R 332, and Regina v Jefferson [1994] 1 All ER 270.

It is not necessary for the jury to be satisfied that the 12 or more persons were in close proximity, close enough so that they could assist each other by force if necessary: Parhizkar v Regina [2014] NSWCCA 240 esp at para [87].
Affray.
It is an offence under s. 93C Crimes Act if

a person uses or threatens unlawful violence, whether
to persons or property, (including any violent conduct such as throwing missiles
that fall short) not including a threat by words alone

and the conduct is such that it would cause a person of reasonable firmness to
fear for his personal safety- no such reasonable person need be present
need not be in public

Maximum penalty: 10 years

When an offender is sentenced for affray conduct of others aggravating the affray
should not be taken into account: Fajka [2004] NSWCCA 166.
Violent Disorder.
Violent disorder:

3 or more persons present together

use or threaten unlawful violence

such as would cause a person of reasonable firmness to fear for his/her safety

Maximum penalty: 6 months (s. 11A Summary Offences Act)
Public Assemblies.
Where an application is made to the Commissioner of Police 7 days before a planned
public assembly, the Commissioner must apply to the courts to stop the demonstration.
If less than 7 days notice is given the organizers can approach the court for approval.
The benefit of being in an authorised public assembly is that you cannot be convicted
of being in a public assembly assembly or obstruction on that basis alone. It is
not necessary for the police to prove that there is likely to be a breach of the
peace. Reasons such as competing public interests (eg. Christmas day, Anzac marches)
will suffice: Commissioner of Police v Allen (1984) 14 A Crim R 244.
(e) trespass
Trespass.
Under s. 4 of the Inclosed Lands Protection Act a person who enters inclosed lands without the consent of the owner or who remains
on inclosed lands after being requested to leave by the owner or occupier or a person
apparently in charge is liable to a fine of $500. If the inclosed lands are a school,
child care service, hospital or nursing home the maximum penalty is doubled. Once
you have permission to enter an enclosure you do not need separate permission to
enter each enclosure inside: Press v Tuckwell (1968) 69 SR (NSW) 17. 'Inclosed lands' can include premises open to the piblic such as a shop: DPP v Strang [2011] NSWSC 259.
Defences to Trespass.
Lawful excuse is a defence. An honest belief which is wrong at law does not appear
to be a defence: Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497. Protesting
is not a lawful excuse: O'Donohue v Wille [1998] NSWSC 661.
(f) intentional or reckless damage to property
Intentional or reckless damage to property
Intentional or reckless damage to property is an offence punishable by 5 years, but
if done by fire or explosives, 10 years: s. 195 Crimes Act. The offence is
Table 1 but if the damage is over $5,000 it is Table 2. If the offence is committed in company, the maximum penalties are 6 years and 11 years respectively.

'Damage' means physical harm, and it need not be permanant or irreparable: DPP v Fraser and O'Donnell [2008] NSWSC 244. Spitting on a stainless steel seat in a police dock does not constitute malicious damage because it does not constitute either physical harm to or functional interference with property so as to render it imperfect or inoperative: Hammond v Regina [2013] NSWCCA 93 esp at para [77]. It has been held that where a defendant chains himself to a machine to render it inoperable, the offence is made out: Grajewski v DPP [2017] NSWCCA 251.

There must be proof of intention
or recklessness involving foresight: Kippist v Parnell (1988) 36 A Crim R 18, Kelly
v Hillyer (Cantor J 12/3/84), Tzarrangos v Hayes (1991) 53 A Crim R 220. It is not an offence to damage property you solely own,
but it seems it is an offence to burn down a house with a mortgage to a bank: Holden
(1998) 103 A Crim R 70. If the defendant intended or was reckless to any damage to property, he will also be responsible for any damage to property which results, such as lighting a fire on a cushion which burns down a house: CB v DPP [2014] NSWCA 134.

(g) prostitution
Soliciting.
Soliciting near or within view of a dwelling, school, church or hospital is punishable
by $600 or three months: s. 19(1) Summary Offences Act.
The prosecution does not have to prove pestering by the defendant: Jitjardn v Thompson
(1995) 85 A Crim R 24. Soliciting in those areas in a manner that harasses or distresses
others is punishable by $800 or three months.
Public Acts of Prostitution.
Where there is a public act of prostitution (sexual activity for payment whether
of the same or different sexes in a car or in view of the public or a dwelling etc)
the crime is punishable by $1000 or 6 months: s. 20 Summary Offences Act.
Sex of Defendant.
The sex of the defendant is determined by the external sexual characteristics: Harris
and McGuiness (1988) 35 A Crim R 146.
Living from the Earnings of a Prostitute.
It is an offence to live wholly or partly from the earnings of a prostitute punishable
by $1000 or 12 months: s. 15. A person is deemed to live
wholly or partly from the earnings of a prostitute if he lives with or is habitually
in the company of a reputed prostitute and has no visible means of support unless
he satisfies the court he has sufficient lawful means of support. A person who lives
with a prostitute but has other means of support may not be convicted even if he
benefits: Shalunga (1958) 75 WN (NSW) 120. Letting a room to a prostitute at grossly
inflated rents may justify a conviction: Thomas [1957] 2 All ER 181.
Keeping Premises for the Purpose of Prostitution.
There is still a common law offence of keeping a brothel: Rahme (1993) 70 A Crim
R 357. A prostitute who is the sole occupier of a house is not guilty of this offence:
Bell v Stewart (1989) 43 A Crim R 400.

9/.
Traffic Offences

Public Street.
A public street is defined as any street, road lane or thoroughfare or place open
to or used by the public, including any place open to or used by the public on payment
of a fare or otherwise. A public street appears to include any car park open to
the public without discrimination such as a hotel car park (Abrahams [1984] 1 NSWLR
491) or service station: Doherty v Barbaric (1982) 7 PSR 2465.
Drives.
The test for driving seems to be using controls for directing the direction of the
vehicle: Mercorella v Page (1975) 12 SASR 431. It does not appear to include a vehicle
under tow: Hampson v Marin [1981] 2 NSWLR 782. The crucial matter may be control
over the propulsion: Affleck (1992) 65 A Crim R 96. Even if a passenger has grabbed hold of the steering wheel, if the person in the driver's seat has control over the accelerator and the brake, he or she is the driver: Williams [2012] NSWCCA 286.
Dangerous Driving.

the impact occasioned the death or grievous bodly harm of another person

the driver was, at the time of the impact, driving the vehicle under the influence of an intoxicating liquor or a drug, or at a speed dangerous to another person or persons, or in a manner dangerous to another person or persons

It is not necessary for the Crown to establish that the defendant was negligent, as dangerous driving can be constituted by momentary inattention: see King v The Queen [2012] HCA 24. The trial judge should not direct the jury that it is not necessary to be satisfied that the driving was deserving of criminal punishment: King v The Queen [2012] HCA 24.

S. 52A is not restricted to public highways. Passengers
will be treated as members of the public unless possibly on a joint escapade: S (1991)
53 A Crim R 263.

Penalty: 10 years for death and 7 years for gbh for dangerous driving, except for
aggravated dangerous driving- see below.

Aggravated Dangerous Driving
To be convicted of aggravated dangerous driving, in addition the Crown must prove
that at the time of the impact:

the accused had the pca in his blood, or

the accused was driving 45 kph more than the speed limit, or

the accused was driving to escape a police pursuit.

The penalties for aggravated dangerous driving are 14 years for death and 11 years
for gbh.

Driving in a speed or manner dangerous to the public.

Driving at a speed dangerous to the public can be constituted solely by speed: De
Keyzer (1987) 9 NSWLR 709. Danger to the public is an objective standard, and does
not depend on realization of the risk to the public. It refers to potential danger
not merely actual danger: Hain (1966) 85 WN (NSW) (pt 1) 7.

The jury should be instructed that negligence, driving in a manner dangerous to the
public and culpable driving are all divergences from the standard of driving of the
ordinary prudent driver: Buttsworth [1983] 1 NSWLR 658. However to find the accused
guilty of this offence, the jury would have to be satisfied that there was a serious
breach of what the jury considered to be the proper management and control of a vehicle
on a public road, so serious as to be in reality a potential danger to other persons
on or in the vicinity of that road: Goodman (NSWCCA 10/12/91, cited in Saunders (2002) 133 A Crim R 104. The
jury should usually be directed that mere negligence is not enough: Regina v Hopton (NSW CCA 8/10/98), Saunders (2002) 133 A Crim R 104.

Drive Under the Influence.
If a person drives or occupies the drivers seat of a motor vehicle and is under the
influence of a drug or alcohol that person is guilty of an offence: s. 112 Road Transport Act. The evidence of a police officer that a person's breath smells
of liquor, is unsteady on their feet, has bleary eyes etc is admissible and the police
officer can give expert evidence that the person is drunk: Whitby (1957) 74 WN (NSW)
441.

It is not necessary to prove that the person is incapable of properly controlling
a motor vehicle: Molloy v McDonald (1939) 56 WN (NSW) 159

Breath Testing.
The procedure for breath testing is as follows:

a police officer can require any person driving or occupying
the driving seat of a motor vehicle and attempting to put the motor vehicle in motion to submit to a breath test: clause 3 Schedule 3 Road Transport Act.

if in consequence of a breath test the police officer is of the opinion that the
person has in their blood the prescribed concentration of alcohol or refuses a breath
test the police officer may arrest the person and require the person to undergo a
breath analysis: clause 4 Schedule 3 Road Transport Act.

if a person is admitted into hospital in consequence of a motor vehicle accident
it is the duty of the medical practitioner treating him to take a sample of blood: clause 11 Schedule 3 Road Transport Act. It is an offence for the driver to refuse to comply. The offence
is an offence of strict liability: Brown v Bergan (1991) 53 A Crim R 417.

If this procedure is not carried out the certificate may still be admissible. Under Bunning v Cross (1978) 141 CLR 54, 52 ALJR the following factors need to be considered when for example the breath test is administered:

the police were not aware of the unlawfulness of their
action

the illegally of the action did not affect the cogency of the evidence

if they have been admitted to hospital and the treating doctor objects

if the sample taker objects on the grounds that it would be dangerous to the person's health

2 hours after the event entitling the breath test (applies to the analysis, but
not the breath test: Wilson (1990) 47 A Crim R 391)

at the person's home (not the front fence (Hall v Coughlan (1970)
91 WN (NSW) 886), but may include car park of a building (Clampett (1984) 11 A Crim
R 103) or the driveway (DPP v Skewes [2002] NSWSC 1008).
The onus is on the Crown to disprove this exemption beyond reasonable doubt: Vatner
(1992) 29 NSWLR 311.

Certificates.
A certificate purporting to be signed by an authorised officer as to a person's alcohol
reading is prima facie evidence of the things in the certificate: clause 35 Schedule 3 Road Transport Act. A certificate outside the 2 hour limit is inadmissible unless there
is expert evidence about continuance: Olejarnik (1994) 72 A Crim R 542.

A certificate as to blood analysis is evidence of the things stated in the certificate
if the certificate states that:

the operating officer is authorised by the Commissioner
to so do-the person named in the certificate submitted to a breath
analysis

the apparatus used by the officer was a breath analysing instrument

the analysis was done at the date and time stated on the
certificate

a concentration of alcohol was found in the blood at the
date and time stated in the certificate

Wilfully Alter Concentration.
It is an offence to wilfully alter the concentration of alcohol in the blood after
having been required to undergo a breath test: clause 16 Schedule 3 Road Transport Act. The penalties are the same as for high range pca. The act of the
driver must be done with the object of distorting a blood test: McRae v Bower (Yeldham
J 26/6/86 ).

Refuse Breath Analysis.
It is an offence to refuse a breath analysis and the penalty is exactly the same
as for high range pca: clause 13(1), Schedule 3, Road Transport Act. Refusing a breath analysis is an offence of absolute liability:
Walker (1994) 77 A Crim R 236.

Aid and abet PCA.
It is necessary to prove that the aider and abettor knew that the driver had drunk
excessive alcohol: Bruce v Williams (1989) 46 A Crim R 122. Recklessness does not
suffice.

Drive While Disqualified.
It is an offence to drive whilst disqualified or cancelled: s. 54 Road Transport Act.
It appears that the defence of honest and reasonable mistake is a defence to drive
whilst disqualified, but there must be some evidence of the mistake from the defendant: El Hassan v DPP [2000] NSWCA 330,
but see Vlahos [1975] 2 NSWLR 580. It is not necessary to prove that the notice was
served. Once honest and reasonable mistake has been raised, it is up to the Crown
to disprove honest and reasonable mistake beyond reasonable doubt: Valentine v Eid
[CN 119]. The mistake of fact must be such that if the mistaken belief was true, no offence would have been committed: DPP v Kailahi (2008) 191 A Crim R 145 .

If the disqualification is quashed on appeal, the disqualification periodremains on foot until the time of the appeal and there can still be a drive while disqualified charge during this period: RMS v Porret [2014] NSWCA 30.

Use Motor Vehicle.
The offence of use motor vehicle applies only to converting a vehicle to your own
use (eg by driving it): Willis v Sugden [CN 114].

Particulars.
There is an obligation to stop and give particulars after an accident which is not
limited to the scene of the accident: Solman v Libdy [CN 127].

'PCA' of course refers to the 'prescribed concentration of
alcohol.' Novice range pca' applies only to drivers who hold a learner's
licence or a provisional licence. The range is less than .02 but more than zero (s. 108 Road Transport Act).

'Special category PCA' is pca for special categories of driver, who include learners,
provisional drivers, disqualified or cancelled drivers, and drivers who have not held a licence for more than 6 months (s. 107 (2) Road Transport Act). The range is .02 or more but less than .05 (s. 108 Road Transport Act).

'DWC' is the offence of 'drive while cancelled', 'DWS' is
drive while suspended, and 'DWD' is the offence of 'drive while disqualified' under: s. 54 Road Transport Act.

'Fail to stop' (s. 146 Road Transport Act) is the offence of failing to stop and render assistance after an
accident in which a person is killed or injured.

Penalties for drive manner dangerous, refuse analysis, and
alter concentration are the same as hpca.

It has been held that where a person is charged with drive whilst disqualified, the only offences relevant to determine whether the offence is a second or subsequent offence is the offence of drive whilst disqualified: DPP v Partridge (2009) 74 NSWLR 62 .

Where an offender receives a prison sentence, it is doubtful if the sentencing judge can commence the disqualification period at a later date (such as the date the non-parole period expires): Hei Hei v Regina [2009] NSWCCA 87 esp at para [46].

Owner.
The prosecution can charge a person with stealing property, the owner of which is
unknown, but there must be proof that the goods are actually stolen and the prosecution
must adduce evidence that the owner cannot be ascertained: Ellis v Lawson (1987)
33 A Crim R 69.

Property.
The property must be a specific moveable item and must have some value, no matter
how slight: Daley (1879) 12 SCR (NSW) 151.This includes illegal drugs: Anic (1993)
68 A Crim R 313. It appears not to include confidential information: (Stewart (1988)
41 CCC (3d) 481) or withdrawals from a bank account: Croton v The Queen (1967) 117 CLR 326.

Dishonestly.
A stealing must be 'dishonest,' and in deciding whether or not it is dishonest the
jury should apply the current standards of ordinary people, and then determine whether
or not the defendant must have realised that what he was doing was dishonest: Feely
[1973] 1 QB 530 and Ghosh [1982] 1 QB 1053, adopted for larceny in Weatherstone (1987)
8 PSR 3729. See also Macleod v The Queen (2003) 214 CLR 230.

Intention and Taking.
The taking of the property must take place at the same time as the intention to steal.
Therefore if the initial taking is innocent, a later intention to steal will not
suffice: Matthews (1950) 34 Cr App R 55.

However if the initial taking is trespassory, a later dishonest intention will suffice:
Riley (1853) 169 ER 674.

Larceny by Finding.
Where the Crown alleges stealing by finding, the Crown must negative the possibility
that the goods have been abandoned and that the accused did not believe that the
owner could be found. What the accused does to attempt to locate the owner is relevant:
MacDonald [1983] 1 NSWLR 729. A later discovery of the owner and intention to keep
the goods will not suffice: Thurborn (1848) 169 ER 293. Occupiers of land have possession
of lost things on it: Hibbert v McKiernan [1948] 2 KB 142.

Claim of Right.
If the accused honestly even if unreasonably believed that he was asserting a lawful
claim of right there is no larceny: Bernhard [1938] 1 KB 264. It is sufficient if
the defendant honestly believed that he was legally entitled to the property, even
if he did not believe that he had a right to claim it the way that he did: Love (1989)
44 A Crim R 416, Fuge (2001) 123 A Crim R 310. You can
make a claim of right on behalf of someone else: Saunders (1991) 57 SASR 102. The
defence only applies if you can only take what you believe you are owed: Sneddon (1994) PD [75], Fuge (2001) 123 A Crim R 310.

The defence
applies not only to stealing but crimes which have larceny as an element of the offence,
such as robbery: Fuge (2001) 123 A Crim R 310 (but note that claim of right will not provide a defence to an assault which is part of the offence).

Mistake.
If a person hands another property under a mistake, it appears that there can be
no larceny unless the mistake is a fundamental one as to the identity of the accused
or the item handed over, but not for example as to the amount of money handed over: Illich v The Queen (1987)162 CLR 110 interpreting
Ashwell (1885) 16 QBD 190 and Middleton (1873) LR 2 CCR 38. It may be that these
cases should not be followed at all and property handed over as a result of a mistake
cannot found a conviction for larceny:Illich, Potisk (1973) 6 SASR 389,
Marshall v Szommer (1989) 44 A Crim R 198.

Stealing from Machines.
Making a withdrawal from an automatic teller when you have closed your account is
stealing, even though the machine arguably 'consented': Kennison v Daire (1986) 160 CLR 129, 60 ALJR 249. It even appears to be stealing if the withdrawal is for more than
the balance of the account: Evenett (1987) 24 A Crim R 330.

Larceny by a Trick.
If the accused obtains possession from the victim by reason of a trick, then larceny
has been committed although the owner voluntarily handed over possession. However
if the owner intends to hand over ownership to the accused, then larceny is not available
but false pretences may be: Ward (1938) 38 SR (NSW) 308, Justelius [1973] 1 NSWLR
471.

Larceny by a Bailee.
Where money is alleged to have been stolen by a bailee, there cannot be a conviction
of larceny as a bailee unless the bailment is in relation to the actual notes and
coins: Ward.

Car Stealing

Where a car an offender 'takes and drives' a car, without
necessarily intending to permanently deprive the owner of the car permanently, the
offender can still be guilty of 'deemed' larceny by way of s. 154A Crimes Act. Importantly
this includes being someone who knows the car is stolen agreeing to be a passenger
in the car. As a result 'taking and driving' a car is deemed to be larceny, the maximum
penalty for which 5 years imprisonment (see s. 117 Crimes Act). A conviction under s. 154AA involves a finding that
the offender intended to permanently deprive the owner of the car. The maximum penalty
in these circumstances is 10 years imprisonment.
(b) fraud and deception

Fraudulent Misappropriation.
This offence only applies if the money is entrusted to the accused not to use as
he thinks fit but to apply it in a particular way or to retain an equivalent sum: Stephens v The Queen (1978) 139 CLR 315. There
must be a fiduciary element in the relationship between the accused and the property: Andrews v The Queen (1968) 126 CLR 198. 'Fraudulently'
means dishonestly: Lawrence (1996) 86 A Crim R 412. 'Money' includes cheques and
bank accounts: Hunt (1996) 88 A Crim R 307.

The offence can be committed if a person receives property even if it is not delivered
to him by the owner and the owner has no knowledge of it, such as when a car dealer
receives money on behalf of a finance company: R v J (1987) 9 NSWLR 615.

False Pretences.
False pretences is committed when a person obtains property from another as a result
of a false pretence or a wilfully false promise: s. 179. It appears that even if
the contractual arrangement is to pass possession, and not ownership, false pretences
can be committed: Petronius-Kuff [1983] 3 NSWLR 178.

A false statement of future intention is not a false pretence: Greene v The Queen (1949) 79 CLR 353. However
this is covered by the 'wilfully false promise' part of the section. A wilfully false
promise is one which is knowingly intentionally false at the time it was made: Harrison
[1957] VR 117. A promise is meant in the same sense as a contract, and can be one
whose performance depends upon the actions of others (eg false promises about returns
on a business): Freeman and Sargent (1981) 4 A Crim R 55.

If the person upon whom the deception is practised realizes the deception is false,
no crime is committed even if the property is handed over, but there may be an attempt:
Kassis v Katsontonis [1984] 3 NSWLR 330.

The requirement for proof of an intention to defraud requires only proof of an intention
to deprive a person by deceit, even if the person does with the property exactly
what he says he will: Balcombe v De Simoni (1972) 126 CLR 576,
London and Globe Finance Corporation [1903] 1 Ch 728. Where the person deceived is
a public official, there is no need to prove economic loss: Welham [1961] AC 103.

Obtaining a Benefit By Deception.
It is an offence to by deception to dishonestly obtain property or
a financial advantage: s. 192E. It is not clear whether
or not gaining time to pay an existing debt suffices: Fisher v Bennett (1987) 85
FLR 469, Matthews v Fountain [1982] VR 1045. Using a credit card after it has been
cancelled can constitute the offence: Lambie [1981] 3 WLR 88. The cause of the benefit
being handed over must be the deception: Ho (1989) 39 A Crim R 145. Serving a statement
of claim is protected: Jamieson (1993) 67 A Crim R 150.

The offence is not made out when a bank customer contnued to make withdrawls fron his bank account which the bank knew exceeded the balance of the account: Moore v Regina [2016] NSWCCA 260 esp at para [26].

An omission to inform the alleged victim of some matter where there is no express legal duty to do so will not constitute the offence: CDPP v Poniatowska [2011] HCA 43.

Conspiracy to Defraud.
A conspiracy to defraud is made out where there is an agreement by fraudulent means
to inflict economic loss on a person or deprive him of an advantage, or to cause
a public official to act contrary to his duty. Fraudulently means dishonestly: Horsington
and Bortolus [1983] 2 NSWLR 72.

It is not necessary to give the jury a Ghosh [1982] 1 QB 1053 direction that the
prosecution must prove that what the accused did was dishonest according to the ordinary
standards of reasonable and honest people, unless an issue about whether what the
accused did was dishonest arises on the evidence: Peters v The Queen (1998) 192 CLR 493, 72 ALJR 517.Conspiracy to defraud is an offence against the common law
of Australia and so may be tried in any state where there is a real connection with
the crime: Lipohar v The Queen (1999) 200 CLR 485.

It is an offence to make or use a false instrument, intending to induce another person to accept the instrument as genuine, to obtain property, to obtain a financial advantage, or to influence the exercise of a public duty: s. 254 Crimes Act.

For a person to be convicted of using a false instrument as a principal in the first deegree, there must be prove that the accused dealt with the document in some way: Sultan v Regina [2008] NSWCCA 175.

Robbery.
Robbery is constituted by an intention to steal, with some degree of force putting
the person in fear, and a taking from the person. It is not necessary for the Crown
to establish that the item was held or worn by the victim, it is enough if the item
is in his immediate presence: Delk (1999) 46 NSWLR 340, 106 A Crim R 240. There must be proof that force was used to overpower the
other party and prevent him resisting, not just to get the property: Gnosil (1824)
171 ER 1206. The force or threat of force must come before the property is taken:
Foster (CCA 7/4/95).

There must be an intention to permanently deprive some-one of their property: Salameh
(1987) 26 A Crim R 353.

The charge should not be described as assault and rob in
the charge, but as robbery: Smith and Kirton (1990) 47 A Crim R 43.

Claim of right is a defence to robbery: Langham (1984) 12
A Crim R 391, Skivington (1967) 1 All ER 483, Fuge [2001] NSWCCA 208. However it is not a dfence to assault.

The penalty for robbery or stealing from the person is 14
years (s. 94). Sentences for 'steal from
person' tend to be lower than sentences for robbery.

Robbery in Circumstances of Aggravation.
A robbery is in circumstances of aggravation if any of the following occur before,
during or immediately after the robbery:

Armed Robbery or Robbery in Company.
Armed robbery or robbery in company is an offence (s. 97).
'Armed robbery' means armed with an offensive weapon or instrument. 'Offensive weapon
or instrument' is defined as

a dangerous weapon (as to which see below);

anything made or adapted for offensive purposes; or

anything that in the circumstances is used, intended to
be used or threatened to be used for offensive purposes whether or not it is used
for offensive purposes or whether or is capable of causing harm

'Dangerous weapon' is defined to mean a firearm, a prohibited weapon under the Prohibited
Weapons Act, or a spear gun (s. 4 Crimes Act). Replica firearms
are included in the definition of prohibited weapons (see Schedule 1 to the Weapons Prohibition Act). For practical
purposes, it is important to note that a normal knife (not for example a flick knife)
or a screwdriver are offensive weapons, but are not dangerous weapons (see Schedule
1 to the Weapons Prohibition Act). The difference
between offensive weapons and dangerous weapon has practical consequences in relation
to the maximum penalty (as to which see below) and also the availability of felony
murder.

'In company' requires more than that others were present,
at least they must be ready to assist or encouraging: Crozier (1996) PD [282]. The
requisite intention is that the offender placed himself in a position where he knew
or expected that the victim would know of his presence and ability to assist in the
robbery if called upon: Leoni [1999] NSWCCA 14. To establish
that offenders were 'in company', it has been held that there must be such proximity
as would enable the inference that the coercive effect of the group operated, either
to embolden or reassure the offender in committing the crime, or to intimidate the
victim into submission: Button and Griffen (2002) 54 NSWLR 455. It is also necessary to show that the accused had a common purpose, that is, that there was an express or implied agreement to achieve an agreed end: Markou v Regina [2012] NSWCCA 64 at paras [27] to [28].

The penalty is 20 years unless the offence is aggravated by carrying a dangerous
weapon, in which case the penalty is 25 years (s. 97).

Robbery with Wounding.
Where there is an armed robbery or robbery in company and immediately before during
or immediately after the robbery the accused wounds or inflicts grievous bodily harm
on the person being robbed the penalty is 25 years (s. 98). For offences committed
after 3 February 2003, the 'standard non-parole period' is 7 years.

Demanding Money with Menaces.
Demanding money with menaces is an offence under s. 99. There is no need to prove
an intention to overbear the will of the victim, only to establish an intention to
steal: Evans (CCA 7/12/79). A threat to property will suffice to be a menace: Kuo (1999) 49 NSWLR 226. The offence
is complete when the demand is made in circumstances where the demand is likely to
be communicated: Austin v The Queen (1989) 166 CLR 669, 63 ALJR 413, 40 A Crim R 355. The maximum penalty is 10 years, or if in company, 14 years (s. 99).

Carjacking

It is an offence to assault someone with intent to take
a motor vehicle and take and drive or take with intent to drive the motor vehicle.
It is also an offence to take a motor vehicle without the owner's consent when there
is a person in it (s.154C).The penalty is for the basic offence 10 years (s.154C (1)). For offences committed
after 3 February 2003, the 'standard non-parole period' is 3 years. Where there are circumstances of aggravation (in company
or armed with an offensive weapon or inflicting actual bodily harm) the penalty is
14 years (s.154C (2)).For
offences committed after 3 February 2003, the 'standard non-parole period' is 5 years.
Breaking and Entry.
It is an offence to break and enter premises and commit a serious indictable offence (s. 112). 'Serious indictable offence'
is defined as an offence which carries a maximum penalty of 5 years or more (s.
4 Crimes Act). Typically the person may be charged
with break, enter and steal.

Breaking can consist of opening a closed but unlocked
door or window, but not opening something already partly open: Smith (1827) 1 Mood
178, Galea (1989) 46 A Crim R 158 and Stanford v Regina (2007) 70 NSWLR 474, 179 A Crim R 541. The opening of a closed interior door is sufficient: Regina v Johnson (1786) 2 East PC 448. Entry of any part of the body will suffice.

There is no breaking where permission to enter has been obtained without artifice, a trick, or a threat: Ghamrawi [2017] NSWCCA 195 esp at para [85].

The penalty is normally 14 years, unless the offence is aggravated (see below).

Aggravated Break and Enter.
The aggravated offence ('home invasion') is committed if the offender is

armed with an offensive weapon or instrument

is in company

uses corporal violence on some person

maliciously inflicts actual bodily harm on some person

deprives any person of their liberty

knows that there is a person (or persons) in the place where the offence is committed (s. 105A).

'Offensive weapon' includes anything which is made or adapted
for offensive purposes, or which is used, attempted to be used or threatened to be
used for offensive purposes (s. 4 Crimes Act). The definition
of 'offensive weapon or instrument' is clearly wide enough to cover (for example)
guns, knives, screwdrivers, and blood filled syringes.

As to the meaning of 'in company', it has been held that
there must be such proximity as would enable the inference that the coercive effect
of the group operated, either to embolden or reassure the offender in committing
the crime, or to intimidate the victim into submission: Button and Griffen (2002) 54 NSWLR 455.

For aggravated break enter and steal the penalty is 20 years
(s. 112 (2)). For offences committed
after 3 February 2003, the 'standard non-parole period' is 5 years.Specially Aggravated Break and Enter

The specifically aggravated offence is committed when the
offender maliciously inflicts grievous bodily harm on any person or is armed with
a dangerous weapon (s. 105A).'Dangerous weapon' is defined to mean a firearm, a prohibited
weapon under the Prohibited Weapons Act, or a spear
gun (s. 4 Crimes Act). Replica firearms
are included in the definition of prohibited weapons (see Schedule 1 to the Weapons Prohibition Act). For practical
purposes, it is important to note that a normal knife (not for example a flick knife)
or a screwdriver are offensive weapons, but are not dangerous weapons (see Schedule
1 to the Weapons Prohibition Act).

For specially aggravated break and enter the penalty is 25 years (s. 112 (3)). For offences committed
after 3 February 2003, the 'standard non-parole period' is 7 years.

Related Offences.
Exactly the same penalty structure that applies to break enter and steal also applies
to entering premises with intent to commit a felony and breaking out (s. 109).

For the offence of break and enter with intent to commit a felony, the maximum penalty
is 10 years, if aggravated, 14 years, and if specifically aggravated, 20 years (s. 113).

(d) receiving and goods in custody

Receiving.
The elements of receiving are:

the goods are stolen

the stealing is a felony

the accused received disposed of or attempted to dispose of the goods AND

The maximum penalty is 10 years, but if the property is
a motor vehicle or a motor vehicle part, 12 years.

Proof of Theft.
The fact that the goods are stolen must be proved by evidence admissible against
the alleged receiver (e. g. not the out of court admissions of the thief- but see
Ollerton (1989) 40 A Crim R 1, Mabbott (1989) 40 A Crim R 243). Normally the owner
of the property must be called to give evidence.

Proof of Possession.
The receiver must be in possession of the goods. Mere presence in a car where the
goods are found is insufficient: Fien (1962) NSWR 134.

Knowledge.
It must be proved that the accused knew had a state of belief about the goods which
amounted to:

suspicion coupled with a failure to make inquiries: Schipanski (1989) 17 NSWLR
618.

It is not sufficient that a reasonable man would have known
that the goods were stolen: Parker. However it is permissible for the judge to say
that the jury may convict if they find that the accused must have known that the
goods were stolen: Fallon (1981) 4 A Crim R 413, Whalebone (1983) PSR 2904. If directions
are given about wilful blindness, it must be stressed to the jury that this is only
a step and that the crucial question was the actual belief of the accused: McConnell
(1993) 69 A Crim R 39, Dykyj (1993) 66 A Crim R 567.

An altered engine number doesn't necessarily mean that even a dealer will know the
goods are stolen: Seaton [1994] PD [178].

The belief that the goods were stolen must exist at the time when the goods come
into the possession of the defendant: Curlija [1967] SASR 1, Murphy (1984) 12 A Crim
R 38.

Recent Possession.
Where the accused is in possession of goods which are recently stolen, the jury is
entitled to convict the accused of stealing or receiving unless it finds that the
explanation given by the accused could reasonably be true: Bellamy [1981] 2 NSWLR
727, Ately (1985) 9 NSWLR 226, Kavanagh (CCA 1/9/82 PSR 2576), Bruce v The Queen (1987) 74 ALR 219, 61 ALJR 603. It is incorrect
to refer to the doctrine as raising a presumption: Claxton (CCA 23/3/84 ). The doctrine
does not operate unless there is first proof that the goods are stolen: Trainer v The Queen (1906)
4 CLR 126.

The Alternative Count.
Where an accused is charged with both larceny and receiving a special verdict is
available where the jury is unable to determine if the goods were stolen or received: s. 121 Crimes Act. The jury should
be directed that before returning a verdict of guilty for larceny, the jury must
be satisfied unanimously that the accused is guilty of larceny, not receiving, and
vice versa: Nguyen (NSW CCA u/r 20/2/97, (1997) 4 Crim LN [669]). The counts of receiving
and larceny must relate to the same property, and the jury must be directed that
they can only return a verdict of guilty on the special verdict if they are not satisfied
beyond reasonable doubt on the larceny and receiving counts: Clarke (1995) 78 A Crim
R 226. If the accused is not charged with the alternative count, the jury must be directed that in considering the larceny count, the jury must be satisfied that there is no reasonable possibility that that the accused is guilty of receiving, and presumably vice versa: Regina v McCarthy and Ryan (1993) 71 A Crim R 395.

Money laundering

It is a an abuse of process to charge an accused with a substantive offence of selling an illegal object, and also charging the accused with a money laundering offence for possession of the money: Nahlous v Regina [2010] NSWCCA 58. For the offence of laundering money reasonably suspected of being stolen or the proceeds of crime, the prosecution does not need to specify a particular offence: Lin v Regina [2015] NSWCCA 204.

There is a complex hierachy of offences depending upon the amount of money involved, and state of knowledge of the accused as to whether or not the money was believed to be stolen or the proceeds of crime by the accused, suspected of being stolen or the proceeds of crime by the accused, or reasonably suspected of being stolen or the proceeds of crime. It is a breach of the principles in The Queen v De Simoni (1981) 147 CLR 383 for a judge to sentence an offender who has pleaded guilty to the offence of suspecting that money was the proceeds of crime on the basis that he knew the money was the proceeds of crime: Shi v Regina [2014] NSWCCA 276.

The Offence of Goods in Custody

The offence of goods in custody has the following elements:

the defendant had in

his custody

in the custody of another person

in premises or

gives custody to a person not lawfully entitled to possession
of the thing AND

a thing that may reasonably be suspected of being stolen
or otherwise unlawfully obtained

The maximum penalty is $550 or 6 months gaol. but if the
'thing' is a motor vehicle or motor vehicle part, $1100 or 1 year gaol: s. 527C Crimes Act.

Goods in Custody.
The goods can consist of bank notes (Dittmar [1973] 1 NSWLR 722) but not credits
in a bank account: Grant v The Queen (1981) 147 CLR 503. The very
goods must be suspected of being stolen. It does not suffice to be the proceeds of
sale of stolen goods: Brebner v Seager [1926] VLR 166. It is enough if some of the
items are suspect: Edens v Cleary [1975] 1 NSWLR 278.

Custody.
Custody means immediate de facto control: Ex parte McPherson (1933) 50 WN (NSW) 25.
In shared premises there must be evidence of knowledge of the existence of the goods
and evidence excluding possession on the part of other residents: JAL and LL (1974)
3 DCR 182 .

The custody must be at the time of arrest: English (1989) 17 NSWLR 149,
Larkey v Lahz (1993) PD [24]. If the goods are found by the police after the accused
is in custody, arguably the goods are not in his custody: DPP v Miers (1997) 96 A
Crim R 408, Dahl (1997) 96 A Crim R 502.

S. 527C (1) (d) includes the situation
where suspect goods have been sold to an innocent third party: Gilroy v Jebra (1992)
29 NSWLR 20. Prosecutions under s. 527C (1) (d) relating to giving
custody of a motor vehicle to another must be commenced within 2 years of the date
of the offence (s. 527(1A)).

Reasonably Suspected of Being Stolen.
The magistrate must be satisfied beyond reasonable doubt that the goods are reasonably
suspected of being stolen or unlawfully obtained on the basis of all the evidence
available to him: Ex parte Patmoy; re Jack (1944) 44 SR (NSW) 351, Anderson (1992)
62 A Crim R 277. It may not be enough to show that there are competing lawful inferences:
Chan (1992) 28 NSWLR (per Mahoney J, but contra see Abadee J: must be the strongest
inference available). It is not necessary to show that the goods were stolen or unlawfully
obtained in NSW: Porter [2004] NSWCCA 353.

It is the opinion of the magistrate, not the arresting officer that is important:
Parker v Todhunter (1987) 26 A Crim R 169. Suspicion must attach to the goods, not
just the thief: O'Sullivan v Tregaskis [1948] SASR 12. Hearsay has been said to be
admissible (Tucs v Manley (1985) 62 ALR 460), (but this is really a case on expert
evidence?).

There must be an intention to use the goods in a way inconsistent with the owner's
use: Neilands (Ducker 4/4/91 u/r).

The Defence.
It is a defence for the defendant to show on the balance of probabilities that he
had no reasonable grounds to suspect the items: Tegge v Caldwell (1988) 15 NSWLR
226.

(e) implements

Possession of an Implement.
Possession of an implement without lawful excuse capable of housebreaking or entering
a car is an offence: s. 114. If the item is carried by
a companion, there must be evidence not only of knowledge but of joint control: Pierpoint
(1993) 71 A Crim R 187.

Older authorities said that the implement is one ordinarily
used for lawful purposes there must be evidence that the accused had the implement
with the intention of using it: Oldham (1852) 3 Carrington and Kirwan 249, Kirwan
(1932) JP Reports 137, and Marijancevic (1991) 54 A Crim R 431. However it was held
in Reynolds (NSWCCA unreported 22/8/1986) that the Crown simply has to establish
that the item is capable of being used for that purpose (see also Pierpoint). It
is submitted that the earlier authorities are to be preferred.

The accused has the onus of proving lawful excuse on the
balance of probabilities: Patterson [1962] 2 QB 429.

The maximum penalty for the offence is 7 years imprisonment.

11/.
Attempt, Conspiracy and Complicity.

Accessorial Liability

Accessorial liability is probably the most complicated area of the criminal law. In this chapter, I have attempted wherever possible to draw out what directions should be given in practice. It is acknowledged that many of the decisions referred to below appear to be inconsistent and indeed irrenconcilable.

The intention of the accused is relevant in determining whether or not the acts were
sufficiently proximate: O'Connor v Killian (1984) 15 A Crim R 353. Thus trying the
doors of a car will not be sufficiently proximate unless there are also admissions:
Brinkworth v Zimmer (Yeldham J 16/10/84 )

In McCoy (2001) 51 NSWLR 702, 123 A Crim R 81 a conviction
for knowingly take part in the manufacture of methylamphetamine was quashed because
the materials used could never make methylamphetamine. However, a conviction of conspiracy to manufacture drugs with the ingredients which could never make those drugs was upheld in El-Azzi [2004] NSWCCA 455.

Conspiracy.
Conspiracy is an agreement to do an unlawful act, or to do a lawful act by unlawful
means. The actus reus is the agreement itself. The mens rea is the intention to carry
out the unlawful purpose: Wilson (1994) PD [385]. Recklessness is not sufficient:Peters v The Queen (1998) 192 CLR 493, 72 ALJR 517 at 530.

The Crown does not haveto prove that all the members of the conspiracy joined the conspiracy at the same time. An accused who joins an existing conspiracy at a time after it was formed can still be found guilty of conspiracy: Damoun v Regina [2015] NSWCCA 109 esp at para [27].

Types of conspiracy.
Conspiracies to commit a criminal act are conspiracies but so are:

conspiracy to defraud

conspiracy to commit a tort

conspiracy to corrupt public morals

conspiracy to pervert the course of justice: there must be an intention to do this:
Freeman [1985] 3 NSWLR 303

A person cannot be convicted of conspiracy to commit a Commonwealth
offence if before an overt act was committed, the person withdrew from the agreement
and took all reasonable steps to prevent the commission of the offence: Commonwealth Criminal Code section
11.5 (5).

Co-Conspirators Rule.
Acts or statements of a co-accused in furtherance of a conspiracy may be admissible
against a co-accused. Normally narrative accounts of what has already happened (for example, rcords of interview after arrest) are
not in furtherance of the conspiracy: Tripodi v The Queen (1961) 104 CLR 1.

Statements of a co-accused in furtherance of the conspiracy are admissible to prove
the existence of the conspiracy. Statements are only admissible to prove that an
accused participated in the conspiracy if there is already reasonable evidence of
the existence of the conspiracy. Reasonable evidence appears to mean the same as
prima facie case, with a discretion to reject the evidence:Ahern v The Queen (1988) 165 CLR 87, 62 ALJR 400,
Masters (1992) 59 A Crim R 445 at 459. The statements by which the conspiracy is
made are not admissible: Masters.

The jury should be warned that evidence admitted under the co-conspirators rule should
be scrutinized with care: Chai (1991) 60 A Crim R 305. The jury should be directed
what evidence is admissible against each accused: Checconi (1988) 34 A Crim R 160,
Salib and Hanna (u/r, 8/12/89 ).

Conspiracy and Substantive Offences.
Where there is a substantive offence there should not be a duplication in penalties,
and the penalty for the conspiracy should not exceed that set for the offence. Generally
it is undesirable to profer a charge of conspiracy where a substantive charge is
available: The Queen v Hoar (1981) 148 CLR 32. In
Commonwealth matters, the court may dismiss a charge of conspiracy if it is in the
interests of justice to do so: Commonwealth Criminal Codesection 11.5 (6).

Conspiring to Commit the Impossible.
It is not an offence to join in a conspiracy to do an act which is impossible to
commit : Barbouttis (1995) 82 A Crim R 432. This is not the case with Commonwealth
offences: Commonwealth Criminal Code section
11.5(3).

Conspiring to be reckless

The Crown can charge an accused with conspiring to commit an offence where the mental element is recklessness, but both under the Commonwealth Criminal Code and at common law, in order to establish the offence the Crown must prove actual knowledge of the facts which make the act or acts unlawful: Regina v RK and LK [2008] NSWCCA 338. Special leave to appeal against this decision was granted and the High Court is currently reserved on the matter.

Conspiracy and Jurisdiction.
It now appears that a NSW court has jurisdiction to deal with a conspiracy in Australia
as long as there is a real connection with NSW: Lipohar v The Queen (1999) 200 CLR 485. It is an
offence in NSW to conspire outside NSW to commit an offence in NSW. It is not clear
if it is an offence in Australia to conspire in Australia to commit a crime outside
Australia (Isaac (1996) 87 A Crim R 513).

Procedure.
The accused is entitled to particulars of the precise scope of the conspiracy: Mok
(1987) 27 A Crim R 438. If the Crown moves away from the conspiracy as opened upon,
the trial may miscarry: Wong (u/r, 27/5/88), Mok.

Penalty for Conspiracy

At common law the penalty for conspiracy was at large (i.e. there is no maximum penalty). For
conspiracy to commit a Commonwealth offence, the maximum penalty is the maximum penalty
for the substantive offence: Commonwealth Criminal Code section
11.5(1).

(c) Complicity

Degrees of Participation.
There are the following degrees of participation:

principal in the first degree-commits the act- there may
be more than one

principal in the second degree- present at the commission of the crime, encouraging
but not participating physically

accessory before the fact- takes part in the preliminary stages of the crime but
not present when it is committed

accessory after the fact- takes part in subsequent stages of the crime- eg. preparing
a hiding a hiding place.

Proof that a Crime Has been Committed.
It is necessary for the prosecution to establish that a crime has actually been committed:
Demirian (1989) VR 97. It cannot be proved by a certificate of conviction of the
principal: Triffett (1992) 64 A Crim R 145, Welsh (1998) 105 A Crim R 448, but see
Carter and Savage (1990) 47 A Crim R 55. However because the principal can raise
a defence does not prevent the accessory from being guilty: Cogan and Leak (1975)
2 All ER 1059, Howe (1987) AC 417, Attorney General's Reference (no. 1 of 1975) (1975)
QB 777,Osland v The Queen (1998) 197 CLR 316.

Knowledge.
It was not enough to establish that the accused was aware that some illegal venture
was planned, there must be evidence of knowledge that the accused was aware that
a venture of the type committed was planned: Bainbridge (1960) 1 QB 129.

Withdrawal.
To withdraw there must be timely communication of the intention to abandon the common
criminal purpose communicated to those who desire to continue with it: Becerra and
Cooper (1975) 62 Cr App R 212, White v Ridley (1978) 140 CLR 342,
Tietie (1988) 34 A Crim R 438. The accused must take reasonable steps to withdraw
his encouragement: Wilton (1993) 64 A Crim R 359, White v Ridley. If the accused honestly
does not believe that the others will still commit the crime he is entitled to be
acquitted: Truong (1998) 5 Crim LN [879]. For Commonwealth offences see Commonwealth Criminal Code section
11.2 (4), 11.5(4).

Mens Rea.
To establish the mens rea for being an aider and abettor there must be proved knowledge
of the essential facts that constitute the offence and intention that the offence
be committed. Recklessness is not sufficient. Wilful blindness is only relevant in
that it may be evidence of intention:Giorgianni v The Queen (1985) 156 CLR 473.

Joint Criminal Enterprise

In Tangye (1997) 92 A Crim R 545 at 556-7 Hunt CJ at CL set out the principles relating to joint criminal enterprise which have been accepted in other cases including Regina v Chishimba [2010] NSWCCA 228 at para [29]:

“(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission” (at 556 – 557).

In Youkhana v Regina [2015] NSWCCA 41 esp at para [9] it was held that it was not necessary to show that an accused is assisting or encouraging another participant to commit the crime if it was established that the accused was a party to the joint enterprise.

Joint enterprise for manslaughter by way of unlawful and dangerous act

The Judicial Commission bench book suggests the following direction be given where the Crown case is that there is joint enterprise between A and B to commit a robbery on (V1) and B stabs and kills a bystander (V2):

The accused A and B entered into a joint criminal enterprise to rob V1.

B did an unlawful and dangerous act by stabbing V2 with a knife, thereby causing the death of V2.

B did the act of stabbing of V2 as an incident in the carrying out of the joint criminal enterprise to rob V1.

At the time of entering into the joint criminal enterprise to rob V1, and up to and including the time of the stabbing, the accused knew that B had the knife, which B used to stab V2.

At the time of entering into the joint criminal enterprise to rob V1, and up to and including the time of the stabbing, the accused contemplated that as an incident in the carrying out of the joint criminal enterprise to rob V1, B might do an unlawful and dangerous act, namely stabbing someone with the knife, thereby causing an appreciable risk of serious injury to that person, and the accused, having that contemplation, continued to participate in the joint criminal enterprise to rob V1.

Where the Crown case is that A and B agreed to assault V, and he dies as a result of an assault, the Crown must establish that:

A and B agreed to assault V

B did an unlawful and dangerous act (an assault) which caused the death of V

A and B had an understanding or agreement that an act would be committed which exposed V to an appreciable risk of serious injury

Joint Enterprise for Maliciously Inflict Grievous Bodily HarmThe mens rea for a principal in the second degree in the offence of maliciously
inflict GBH was held to be:

(1) that A knew (or was aware):

(a) of the intention of B to hit the victim, and

(b) that B:

(i) intended thereby to inflict some physical injury upon the victim, or

(ii) realised the possibility that some such injury might result but he nevertheless
intended to go ahead and hit the victim; and

(2) that, with that knowledge, A intentionally assisted or encouraged B to commit
the crime of maliciously inflicting grievous bodily harm upon the victim (Stokes and Difford (1990) 51 A Crim R 25 at 41).

Malicious Wounding with Intent

In Prince v Regina [2013] NSWCCA 274 (at para the NSW CCA appears (at [77], per Schmidt J, with whom Gleeson JA agreed) to have accepted a Crown submission that where there is a charge of malicious wounding with intent on a joint enterprise basis, the prosecution must prove (as against a principal in the second degree, that is someone who was present but did not inflict the relevant injury) that

the victim was recklessly wounded by one of the accused's co-offenders;

the accused was part of a joint criminal enterprise to attack the victim;

that he was acting in company with his co-offenders who he knew were armed with weapons, capable of inflicting a wound when used to strike the victim;

that he realised that the victim might be wounded, as a result of the actions taken by one of his co-offenders;

despite this, he continued to participate

Joint Enterprise for Malicious Wounding

The elements of the offence of malicious wounding for a
principal in the second degree have been held to be (where A is the principal
in the second degree and B is the principal in the first degree).

· First, that B intended to strike the victim causing injury.
· Second, that such injury would involve a wounding, that is, the breaking
of the skin.
· Third, that knowing these things, A intentionally assisted or encouraged
B to commit the offence(Shepherd [2003] NSWCCA 351).

It
would seem to be necessary for the Crown to prove that A knew B had a knife.

Common Purpose.
This doctrine only applies to an unexpected incidental crime added to an agreed foundational
crime. It does not apply when people are carrying out exactly the crime they agreed
to carry out: Mills and Sinfield (1985) 17 A Crim R 411, Stokes and Difford (1990)
51 A Crim R 25 at 35, McFarlane (1993) PD [210], Tangye (1997) 92 A Crim R 545, May v Regina [2012] NSWCCA 111. It
should not be applied even when it is not clear which of a number of people present
committed the act: Clough (1993) 64 A Crim R 451 at 455.

An accessory before the fact and a principal in the second degree are liable for
a crime within the contemplation of both of them as a possible incident of the originally
planned venture:Johns v The Queen (1980) 143 CLR 108, McAuliffe v The Queen (1995) 183 CLR 108, 69 ALJR 621, (1995) 79 A Crim R 229. There may be a question of the remoteness of the risk, and negligible
possibilities may need to be disregarded: Chan Wing-Siu [1985] AC 168. Query the
result where common purpose and reckless indifference overlap: Annakin (1987) 37
A Crim R 131. If the incidental crime is contemplated as a possibility, an accessory before the fact or principal in the second degree will be guilty even if he did not agree to the secondary crime: seeGillard v The Queen (2003) 219 CLR 1 esp at paras [111] to [112].

There must be proof of knowledge of the weapon's presence
or that some use of a weapon is within the scope of the common design (less likely
with guns): Duong (1992) 61 A Crim R 140. It has been held that the jury need not be directed
that to return a verdict of guilty, the jury would have to be satisfied that A contemplated
the use of the gun by B other than in self-defence: Bikic [2002] NSWCCA 227.

A failure to direct the jury that the Crown must establish that A contemplated that B might use the weapon with the intention of causing really serious bodily harm is fatal to the directions: Taufahema [2007] NSWCCA 33.

Common Purpose Felony Murder.
The Crown must prove:

that A & B agreed to rob C

that A knew B was armed with an offensive weapon

that during or immediately after the robbery B used the weapon causing the death
of C

A had in mind the 'contingency' that the weapon would be discharged: Sharah (1992)
30 NSWLR 292, 63 A Crim R 361.

Common Purpose Manslaughter

If a person counsels or procures another person to do an
act which is unlawful and likely to cause harm to another person, and results in
a death (even though death was not foreseen or intended), the first person can be
guilty of manslaughter: The Queen v Chai [2002] HCA 12.

It has been held that it is wrong to direct a jury that if the accused contemplates
that something more than trivial harm will be occasioned to the victim the accused
is guilty of manslaughter: Rees [2001] NSWCCA 23. Model directions are not easy to frame, but it appears that
directions similar to these have the approval of the NSW CCA in Puta [2002] NSWCCA 495. The Crown
must prove:

that A & B agreed to assault C

that A knew B had a gun

B fired the gun killing C

A foresaw the possibility that B would use the gun, (but
not that it would be used with the intention of killing or inflicting grievous bodily
harm)

the use of the gun was a dangerous and unlawful act

Principal in Second Degree.
Where the accused is present, the Crown must establish that the accused was aware
of the intention of the principal perpetrator: Clough (1993) 64 A Crim R 451 at 455,
but see McAuliffe & McAuliffe (1993) 70 A Crim R 303.

The Crown is required to prove:

the accused was present when the crime was committed

knew that the crime was to be or was being committed

intentionally assisted or encouraged another participant to commit the crime (at
least, being present and ready to assist)

(Tangye (1997) 92 A Crim R 545).

Model directions are given in Tangye at 556-7.

Accessory Before the Fact.
With an accessory before the fact, no event, after the accessory parts company with
the others, is evidence of common purpose: Duong (1992) 61 A Crim R 140. It appears that in a case of accessory before the fact to
murder on the basis of joint enterprise, the Crown must establish that:

A asked B to cause really serious harm or death to C

B applies force to C and kills C, AND

A contemplated the possibility that B would inflict grievous
bodily harm on C as part of the common enterprise to harm him

It appears that in a case of accessory before the fact to
murder on the basis of common purpose, the Crown must establish that:

the application of force by B on C for the purpose of causing
him grievous bodily harm was within the scope of the joint criminal enterprise

See Suteski (2002) 56 NSWLR 182, 137 A Crim R 371 (especially
at para [144]).
Accessory after the Fact.
An accessory after the fact must have knowledge of all the facts constituting the
particular offence at the time he renders assistance to the principal: Stone [1981]
VR 737. The act must be done with the intention of helping the principal avoid detection:
Young and Phipps (1995) PD [389]. Thus sharing in the proceeds with nothing more
will not suffice: Barlow (1962) 79 WN (NSW) 756.

In order to establish the offence of accessory after the fact to murder, the Crown must establish that the accused was aware that the principal offender had the requisite intent for murder: Gall v Regina [2015] NSWCCA 69 esp at para [156].

At common law a wife could not be convicted of being an accessory after the fact
to a crime committed by her husband: CAL (NSW CCA 24/10/96). However this immunity
has been abolished: s. 347A Crimes Act.

Conceal Serious Offence (formerly Misprision of a Felony).
Misprision of a felony has been abolished by s. 341 Crimes Act. It is an offence
to fail to inform the police which might be of material assistance in arresting or
prosecuting an offender of a serious crime (punishable by over 5 years): s. 316. The maximum penalty is
2 years.If the principal offender is dealt with summarily the offence
is still applicable: Sinclair (Sperling J (1997) 4 Crim LN [673]). The accused must
have subjective knowledge of the commission of a felony, not mere suspicion: Wozniak
(1989) 40 A Crim R 290. Material facts are not facts already known to the police:
Stone [1981] VR 737. Silence of a person after a caution and when an answer would
tend to incriminate does not constitute an offence: King (1965) 49 Cr App R 140,
Lucraft (1966) Cr App R 296.

12.
Offences Against the Justice Systemand Corruption

(a) escape

Escape.
Escape is the conscious and intentional withdrawal from custody. A prisoner innocently
at large is not guilty of escape: Scott (1967) VR 276. A person who appears on bail
but flees from the court is guilty of common law escape: Peehi (1997) 41 NSWLR 476,
(1997) 92 A Crim R 539.

Lawful Custody.
It seems that it is not necessary for the Crown to prove each step in a chain of
custody of the prisoner: Powch v The Queen (1987) 163 CLR 496, effectively
overruling Templeton [1956] VLR 709.

Maintain an Escapee.
It is not enough to supply an escapee with one meal, maintenance must be continuous:
Blinkhorn (1994) 71 A Crim R 472.

Corroboration.
The requirement of corroboration has been preserved under s. 164 Evidence Act. There must
be corroboration of the alleged lie: Yates (1841) 174 ER 441.

Swearing.
Swearing involves an appeal to a higher being: Sossi (1985) 17 A Crim R 405. There
should be proof not merely of a signature on an affidavit, but of evidence of the
oath being administered on that occasion or by invariable practice: Rickards (1849)
13 JP Reports 201. There is an alternative verdict if swearing is not proved under s. 31 Oaths Act.

Materiality
The lie must relate to a matter material to the case: Murray (1858) 1 F& F 80,
Alsop (1869) 11 Cox 264 , Hellifont (1991) 57 A Crim R 256. The question of materiality
is a matter of law (s. 327(4)). If the lie is not material,
there is an alternative verdict for false swearing under s. 329. Any matter which is practically
relevant to the proceedings is material: Dineen (NSW CCA 25/2/98), Charles (1998)
5 Crim LN [826].

Knowing the Statement to be Untrue.
The Crown must prove that the accused made a statement knowing at the time that he
made it that it was false or at least that he did not believe it to be true. If the
jury concludes that the accused made a genuine (even if unreasonable) mistake the
jury must acquit: MacKenzie v The Queen (1996) 190 CLR 348, 90 A Crim R 468.

It is an offence to attempt to pervert the course of justice carrying a maximum penalty of 14 years: s. 319 Crimes Act.

'Attempt to pervert the course of justice' means obstructing, preventing, perverting or defeating the course of justice or the administration of the law: s. 312 Crimes Act.

'The administration of law' in this context means the administration of the civil and criminal courts and tribunals, and not for example, swearing false statutory declarations to avoid administrative speeding fines: Einfeld v Regina (2008) 71 NSWLR 31. It was held by the NSW CCA that the 'course of justice' only begins when the jurisdiction of a court is invoked, not simply when the offence is being investigated: Beckett v Regina [2014] NSWCCA 305. However this decision was reversed by the High Court in The Queen v Beckett [2015] HCA 38, which conveniently sets out the elements of the offence at para [46].

The Crown cannot use a charge of attempt to pervert the course of justice when the facts are perjury:
Tsang Ping Nam (1982) 74 Cr App R 139.

(d) Reprisals Against Public Justice Officials, Jurors and Witnesses
It is an offence to threaten to or to cause injury to another person intending to
influence the person not to bring material information about an indictable offence
to the attention of a police officer. The maximum penalty is 7 years imprisonment: s. 315A Crimes Act.

It is an offence to threaten or cause violence to a witness,
a juror, a judge, or any public justice official in connection with a judicial proceeding: s. 326 Crimes Act. The penalty
is 10 years. Strangely, a 'public justice official' has been held to
include police officers, but arresting a suspect and taking him to a police station
has been held not to be 'in connection with judicial proceedings': Orcher [1999] NSWCCA 356.

There is a common law offence of misconduct in public office. The elements of the the offence are:

(1) a public official;

(2) in the course of or connected to his public office;

(3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4) without reasonable excuse or justification; and

(5) where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.